I suppose a good place to start is with some background information about why I suggested this thread, and what I envision for it.
As many of you now know, I'm back in school, law school, and am struggling through my first year of classes. I've thoroughly enjoyed the experience, and, as I said to many, find the whole subject both interesting and challenging. While much of the material I'm learning doesn't lend itself to this sort of discussion forum (I think it might be boring to many), the issues I'm grappling with in criminal law seem more applicable to discussion within a general audience.
Now, in advance, I want to state that there are many people out there in Moteland who both understand and know more about the topics I've been dealing with than I do. I'm a novice, and I make no claims to greater understanding than most of this community, but I think the issues are quite fascinating, and, as I said in the Suggestions thread, touch on areas that matter to many people living in a modern, liberal society.
I also, quite unabashedly admit that I want to discuss some of the topics I propose simply because I am working them out in my own mind, and will benefit from debating/discussing them with many of you. I welcome both your ideas for general topics related to law, and to your support in the coming discussions.
MsIt
3. MsIvoryTower - 2/24/2000 9:37:46 AM
Here's an issue to get us started:
What is the appropriate mental state necessary to commit a 'crime'?
In the American legal system, evolved from English laws and traditions, a basic principle behind the state's right to punish is that only men (women) who are blameworthy (in some way) should be punished. This idea is captured in the phrase "guilty minds, guilty acts". That is, one should not be punished for a crime unless one had the intent to commit it. However, while this is the guiding principle, there are exceptions to the rule.
For instance, statutory rape laws require no intent or mental state to be punishable. If one has sex with an under age child, one is punishable, even if one didn't know the person was under age: even if one has been mislead to believe otherwise. Here the act carries a strict liability level of culpability: you do it, you're guilty, no matter what the circumstances.
Another exception is with laws designed to protect the public welfare. If you're a drug manufacturer, and you mistakenly label a shipment of drugs (say over the counter), and distribute them, there is no defense. You break the laws, you are guilty.
What do you think of these two principles? Do you find them contradictory?
If you don't, when do you think exceptions to the guilty mind, guilty acts principle are valid?
4. Dantheman - 2/24/2000 9:46:04 AM
MsIT,
I suspect traffic violations also fit into the types of laws where mental state is irrelevant (e.g., it doesn't matter whether you intended to run through a stop sign, or even if you knew whether the stop sign was there). This discussion will probably show many more such examples.
5. MsIvoryTower - 2/24/2000 9:48:08 AM
[If you're wondering what happened to #2, I plead guilty to ignorance wrt this moderator thing, and ended up double posting without knowing it.]
One final thing, my time is a bit limited, so if I don't respond to comments please be patient, I'll try not to ignor anyone's contributions.
6. MsIvoryTower - 2/24/2000 9:51:13 AM
Danteman,
I think you're correct. Of course, the theory behind strict liability for those transgresssions is that we don't punish by taking away a person's freedom, we fine them, or annoy them into compliance.
The issue of strict liability for acts with serious consequences (imprisonment for lengthy periods) is a bit more controversial, IMO.
7. ChristiPeters - 2/24/2000 10:10:52 AM
Well, I'll take a stab at the statutory rape one.
As I understand it I see the burden is on the adult -
1. To know what the heck they are doing before they have sex. Know your partner well enough to know their age, even if they lie. It's not all that hard to check out and you don't really have to have sex with that hottie you met an hour ago (or a day ago, or a week ago). Your hormones may be screaming at you, but an adult should be able to control themselves anyway.
2. Be the responsible one when faced with a child that is not controlling their screaming hormones. It doesn't matter that the kiddo wants sex - they are not going to get it. Yes, you can say "no" even if you really want it just as much as they do.
Now (1) and (2) have as an underlying assumption that sex is bad for kids when the relationship is uneven in regards to power. This is something that most people can agree on if the kid is 5 or 7 or 10, but gets fuzzier the closer the age gets to majority and the narrower the gap is between the "adult" and the "child".
Is sex with a 30 yr old bad for a 14 year old? How about a 22 year old and a 17 year old? This is a whole 'nother argument. Right now, our society defines child as less than 18 (in most states) and adult as 18 or 21 and older.
In light of the psychological evidence to date, I think it is a good law. Perhaps it can be tweaked a bit - say lower the "age of consent" or put in something to make age gap something to be considered - but I don't think there is an awful lot of injustice going on as a result of this law. Any grey area cases can be taken care of with prosecutorial adn judicial discretion. So I'd leave it alone.
(Of course I have had ZERO law classes, so throw your pound of salt in with my opinion &:oD)
8. bubbaette - 2/24/2000 2:39:44 PM
ignorance of the law is no excuse, or so they say.
Hi MsIt. Long time no see.
9. ChristinO - 2/24/2000 3:36:24 PM
Congratulations MsIT and great to see you!
I'm going strictly from memory here so please anyone with the facts correct me.
I believe the age of consent for sex in most states is 16. When I was in highschool that was mitigated by a five year age gap until the age of 18. IOW two 16-year-olds could have sex or a 16 and a 20-year-old but a 21-year-old would be busted for statuatory rape because of the five year age difference.
This seems pretty reasonable to me since an 18yo is legally an adult but certainly not so much older than a 16yo that undue advantage is an issue.
I don't know if the law has been changed but within the last 20 years it was legal for a 15yo girl in South Carolina to marry as long as she had parental consent. The implications behind this allowance are really kind of icky.
10. ChristiPeters - 2/24/2000 3:53:49 PM
Christin -
I'm sure the ages vary from state to state. I was just tossing out made-up examples. The age thing is different depending on what you're talking about. A state could allow driving at 16, first drink at 18, and age of consent for sex be 14. I'm not saying any states actually have those specific ages for those things, but there's nothing I know of to stop them.
11. ChristinO - 2/24/2000 4:04:20 PM
Christi,
I assumed you were making up ages to make a point I wasn't meaning to correct you or anything. I think I agree with you about the burden of responsibility as well but the gray areas are what intrigue me. It's why I like the five year clause because it allows for peer relationships and developmental flexibility.
12. ChristinO - 2/24/2000 4:08:23 PM
You're also correct on the states jurisdiction over the age limits I believe. Except for voting age the states can decide the age of eligibility for most anything I think. Remember when the Fed was trying to get all the states to comply with a 21yo drinking age and how Florida kept putting off raising the age because they didn't need Federal money for highways? The whole rest of the country was at 21 and Florida was still at 19.
13. MsIvoryTower - 2/24/2000 4:37:56 PM
Hey, Bubbaette
Correct, ignorance of the law is no excuse.....
So, ladies one and all, you would agree with the notion that strict liability is valid when the crime is statutory rape. Say, even if the man is 20 and the girl is 15 1/2. Even if she carried false ID, he asked her about her age and saw her ID, and her friends all said she was over age. In other words, no ambiguity. No worrying about the circumstances.....
What about other situations? What about rape generally?
As a note of interest, Canada no longer allows statutes (laws) to be interpreted as requiring no culpability level when the punishment is imprisonment, even under so called, public welfare statutes.
14. ChristinO - 2/24/2000 4:42:25 PM
MsIt,
No I'm not totally comfortable with it. I think if you've gone so far as to ask for someone's ID then it is obvious that you are attempting to comply with the law. I don't necessarily belive that you ought to be fubared because someone else commits fraud. Sorry if I wasn't clear (can I just use SIIWC from now on since I have to say it so often?)
Regarding rape in general how do you mean?
15. DaveM - 2/24/2000 4:44:05 PM
Wow. As a fellow one-L, I really look forward to contributing to this thread. I have to run right now, but I'll check back in later.
16. CalGal - 2/24/2000 4:51:07 PM
I think that the leeway that judges have in these cases makes a lot of sense. For example, there was that recent case where the 23 year old went to the house of an 11-year-old girl and was found in her room, hiding in the closet. The girl had come on to him in an Internet chat room, told him she was 17 (also looked it, apparently), and helped him sneak into the house through the window. The guy apparently nearly freaked when he found out how old she was.
The judge said that it takes two to tango and gave the guy 18 months--in effect, sentencing him for statutory rape rather than child molestation. I thought the comment was stupid and the sentence was sensible. Assuming he had reasonable grounds to believe she was 17, he got 18 months for being an idiot--23 is too old to be sneaking into a girl's house for sex.
The comment was stupid, however, because the girl's consent doesn't matter--certainly not at the age of 11. What matters is that she lied, and that the guy had a reasonable basis for believing her.
So I think the laws should make knowledge irrelevant in theory, and then the judges should be able to cut people slack in the event that they really had reason not to know.
17. CalGal - 2/24/2000 4:51:27 PM
I'm uncomfortable with the term "statutory rape". It's either sex with a child unable to consent (say, for purposes of discussion, 13 and under) or sex with a minor teen (13-18). The first should be considered pedophilia or child molestation. The second is what is generally (if not legally) referred to as statutory rape, and it's where the age gaps that Christin mentions comes into play. I think there should be a different term for this, but I also think that the current rules make a lot of sense. It is inappropriate for an adult who has more than five years on a teenager to engage in a sexual relationship. The potential power imbalance is too great, and the teens are a weird time.
But I don't think either of these should be called rape, unless there was physical force and the person didn't acquiesce.
There is a difference between "not giving consent" (rape) and "beneath the age of consent" (sex with a consenting minor). I wish the laws would start to recognize this, because there are far too many people who think it should be okay to have sex with an 8 year old because hell, there was no force involved.
18. MsIvoryTower - 2/24/2000 4:56:06 PM
DaveM
Welcome to the crowd of 1L's, 2L's and 3L's populating the Mote landscape. I think it'd be great if you chimed in with any thoughts or issues you find worthy of discussing, too. And I'm hoping that LadyChaos and TabouliJones will eventually find their way to this corner as well. LadyC is a 2L, Tabouli is either 2 or 3L.
Christin
Well, some people advocate rape laws that focus only on two elements (of the crime), that there have been sexual intercourse (duh), and that it occur without consent of the victim. Without consent is the trickster here, what is meant by consent?
Again, some reform proposals suggest consent should be "affirmative and freely-given agreement". Some states have actually adopted this standard, Wisconsin and New Jersey are two that I know of immediately.
The implications for this sort of definition are somewhat staggering, IMO.
Under the common law view of rape (that is, before states began passing statutes defining the crime) the elements were: intercourse, without consent, with physical force or threat of force. Btw, I should also note that it had to be a man acting against a woman. By definition men could not be raped, nor for that matter, could wives.
19. cmboyce - 2/24/2000 4:56:53 PM
In the instance offered by MsIT in #13, the injustice of the no-inculpability rule (how does one refer to this; and is it a rule and not a statute in all cases?) should, imo, render it impermissable. After all, while the purpose of having laws is social order, it is an ancient idea, a presumption perhaps (I, too, have no legal education), that social order ought to encompass justice (if only so those on the short end of injustice don't keep rebelling and thereby upsetting the social order that is desired). Therefore, any rule of law whose consequence is patently unjust should be modified, to eliminate this subversion of the purpose of law's existence.
20. MsIvoryTower - 2/24/2000 5:03:09 PM
Calgal
The interesting thing about statutory law as opposed to common law is that courts have much less leeway to "interpret" the meaning of the language used. Some courts take the specific language of the statute very seriously, some look to the legislative intent, and some will play fast and loose with it and impose their own vision.
In the last case they (courts) are very likely to incur legislative wrath that results in amended statutes aimed at correcting their interpretation. Then there is even less leeway for judges to "consider the circumstances", if their application of the statute is contrary to what the legislature wanted in the first place.
21. CalGal - 2/24/2000 5:06:07 PM
Ms,
Yes, that's true. But since legislators generally find that no matter what law they pass, judges and lawyers find some ways around it, I keep hoping they'll give up.
In any event, I find it quite upsetting that so many people--and quite a few laws--can't distinguish between pedophilia/molestation, an inappropriate sexual relationship with a teenager, and forcible rape.
22. ChristinO - 2/24/2000 5:07:36 PM
MsIt,
I may be jumping to conclusions here but are you worried about the difficulty of defining exactly what coersion is? IOW under the revised laws it appears that a person could claim rape if he or she had felt pressured in any way to have sex. Or maybe you are implying that it's a good thing since it will offer recourse to those who are coerced into giving their consent.
Or am I totally missing the point?
23. MsIvoryTower - 2/24/2000 5:11:49 PM
Christin
Coercion is not the same thing as physical force. Coercion is also a term used in some rape statutes, and its meaning (like that of consent and physical force) will depend on how the particular state or legislature had defined it.
To answer your question, I'm worried about the potential problems that surround rape laws that would exclude any element of force (or coercion, depending on how it's defined), and focus only on what the victim perceived as consent.
Let us just say, I'm uneasy about the consequences.
24. CalGal - 2/24/2000 5:13:00 PM
I've always thought that the only that matters after the age of consent is whether or not the sex was physically forced on the person. That's rape. Anything else is consensual sex.
25. CalGal - 2/24/2000 5:13:49 PM
In #24, I was talking about the Perfect World I'd Rule, not the current legal definition.
26. MsIvoryTower - 2/24/2000 5:14:50 PM
In addition, to get back to the issue of culpability (and strict liability), to what extent should an accused man have the "intention", or "knowledge" that there was no consent (however it is defined)? Or should we simply say, if she proves she didn't consent (actually, an issue of fact to put before the jury), then it doesn't matter what he believed at all?
27. alistairconnor - 2/24/2000 5:15:06 PM
Message # 3
Ms dear, I take issue with your premise, which seems to be that the purpose of a justice system is to punish wrong-doers.
In my view, the purpose of a justice system is to protect and/or indemnify the members of society against wrong-doing. Society has a right to protect its members; but has a duty to avoid injustice in doing so.
Punishment has a part in this, to the extent that the deterrent effect of it, and/or the protection of society by the incarceration of dangerous elements, outweigh the negative effects (in particular, the dehumanising effect of punishment which frequently renders the offender more dangerous to society). However, it certainly shouldn't be the primary focus of the justice system. This easily slides into revenge as the primary rationale for a justice system, which is not a civilised notion, not an appropriate unifying principle for any society.
28. MsIvoryTower - 2/24/2000 5:16:22 PM
Calgal
I've found so far in my studies, that the perfect world is rare in criminal law.
29. alistairconnor - 2/24/2000 5:19:01 PM
As for the mental state question, I don't believe it should be material with respect to finding someone guilty or not guilty (except in cases of mental incapacity). That proceeds from the principle that the justice system is there to protect society. However it is material with respect to sentencing. That proceeds from the principle that the justice system must avoid injustice.
30. TabouliJones - 2/24/2000 5:19:36 PM
MsIt,
I will try to chime in when I can, but this semester is a busy one for me.
Your reference to the Canadian requirement against strict liability offenses is quite interesting. As I recall, the reaasoning behind it is culled from British common law notions of natural justice. Basically, the idea is that the state must have a strong reason to deny a person's liberty and at the very minimum there must be a guilty mind (a mens rea) alongside an actus reus for there to be a criminal act; which is also at the heart of the not guilty by reason of insanity defense.
There is an interesting tension here with ongoing Canadian debates about rape shield laws -- i.e. rules restricting and/or eliminating the defendant's right to enter evidence about the victim's prior sexual history. As a matter of basic criminal law, these types of rules are contrary to the principles of natural justice, and therefore unconstitutional, because they tend to eliminate the defendant's ability to plead the defense of mistake as to consent.
In 1990, the Supreme Court threw out the rape shield laws as written. However, just before Christmas the Court upheld the rewritten version of the rape shield laws pursuant to section 1 of the Canadian Charter which allows reasonable limits on liberty "as can be demonstrably justified in a free and democratic society." But despite a strong majority decision, the Court is again revisiting the issue at this time.
P.S. The differences between the U.S. Bill of Rights and the Canadian Charter would probably be an interesting discussion. As I alluded above, Canada's Charter permits reasonable limits on liberty. Canada also has the controversial "notwithstanding clause" which can be invoked to allow the provincial and Federal governments to pass certain unconstitutional legislation. Obviously, a discussion along these lines would enage fundamental questions of liberalism and political philosophy in general.
31. MsIvoryTower - 2/24/2000 5:20:02 PM
Alistair!
What a perfectly wonderful position! Problem is that in American law, we have a competing hypothesis: people should be punished when they do something really, really bad, regardless of any value or benefit to society. Bad acts = punishment.
Btw, strict liability laws tend toward implementing the retribution aspect of punishment rather than the deterrence aspect.
32. CalGal - 2/24/2000 5:22:08 PM
Or should we simply say, if she proves she didn't consent (actually, an issue of fact to put before the jury), then it doesn't matter what he believed at all?
Why aren't women obligated to either a) fight physically or b) establish that they were unable to fight (a weapon was held to her throat, or she was physically restrained) in order to charge rape? Why would they ever be allowed to get away with a lower standard of proof?
I'm not challenging you, Ms, I'm just bothered by this notion that women aren't supposed to be grownups.
33. ChristinO - 2/24/2000 5:23:52 PM
Quickly:
CG if my landlord says he'll find a way to evict me unless I have sex with him I'd consider that rape. Coersion does not have to be by threat of physical violence.
MsIt,
I can see a host of problems if culpability is to hinge solely on whether or not the victim can prove a lack of consent. How do you prove that you didn't consent? How does the accused prove that you did?
34. MsIvoryTower - 2/24/2000 5:24:15 PM
Hey Tabouli, hello!
I'd be very interested in such a discussion as you propose.
And the opinion I read that set the Canadian position on strict liability was a brilliant piece, written in 1978. The case was Regina v. City of Sault Ste. Marie, and the opinion was by one Justice Dickson.
35. CalGal - 2/24/2000 5:29:16 PM
CG if my landlord says he'll find a way to evict me unless I have sex with him I'd consider that rape. Coersion does not have to be by threat of physical violence.
Legally, I think that all requests for sex in exchange for anything of value ought to be considered solicitation. That's what it is, after all.
If your landlord says he'll evict you if you have sex with him, then report him to the cops and the management. If you have sex with him, you've proffered sex for something of value, and you're a prostitute.
It ain't rape if he didn't use force, IMO. Women are adults; they can start acting like that and quit being helpless. Part of the problem lies in that women offer sex--even under duress--as something of value.
36. MsIvoryTower - 2/24/2000 5:30:16 PM
Calgal
Rape laws have been changing for the last 25 years. The most recent statutes have tended to interpret rape when the victim can show no consent even when there wasn't any overt "physical violence" or threat of violence involved.
And the issue of resistance is a minefield.
Btw, I tend to agree with you, but I'm coming to the conclusion that hard and fast rules in this area of the law are more unworkable than not. Each case is unique and has its own set of circumstances that stretch the hard and fast rules.
37. CalGal - 2/24/2000 5:31:53 PM
Ms,
Yes, I know the recent interpretations are getting very....generous.
I think there can be leeway, but we're a long way from a sensible center point right now.
38. MsIvoryTower - 2/24/2000 5:33:25 PM
Tabouli
Rape shield laws are also problematic here. The US Supremes have determined that where the character or previous actions of the victim are "relevant" to the accusations leveled at the accused, then the defendents 6th Amendment rights may prevail. As a result, many states have now amended their rape shield laws to take this into account.
The trick is to determine when it's relevant, of course.
39. TabouliJones - 2/24/2000 5:40:40 PM
MsIt,
Maybe after exams I could help moderate a discussion on the subject. Until then, though, I will try my humble best to answer any questions people might have about Canada's Charter, which many Americans are likely to find peculiar or even anathema in a liberal society.
Later tonight, I might try to dig up the Canadian Criminal Code provisions wrt the issue of consent in sexual assault cases. Basically, consent is required -- otherwise the law presumes sexual assault if consent cannot be proven by the defendant. There is a defense of honest but mistaken belief as to consent. However, as noted, there are rape shield laws which often make this defense impossible to plead. I recall the Canadian rules being a somewhat convoluted compromise b/w rights of the defendant issues and rights of the victim issues. Sorry, its been over two years since I studied the matter.
40. TabouliJones - 2/24/2000 5:50:12 PM
The Canadian Supreme Court case on rape shield laws is R. v. Mills.
You can read it here: http://www.droit.umontreal.ca/doc/csc-scc/en/rec/html/mills3.en.html (sorry, forgot how to link . . . I'll learn it again, promise).
For many reasons, R. v. Mills is considered a watershed case. Many see it as a harbinger of the approach that will be taken by the Court under new Chief Justice Barbara McLachlin. I will post a relevant newspaper article in a few minutes.
41. ChristinO - 2/24/2000 5:56:02 PM
I don't think physical force should be the only factor taken into consideration particularly when we have things like the date-rape drug and particularly when there are situations where non-physical coersion is as forceful as a gun to the head.
42. ChristinO - 2/24/2000 5:57:49 PM
could I please just say particularly a few more times?
43. MsIvoryTower - 2/24/2000 6:14:58 PM
Christin
Date rape is an issue alright. Many states have incorporated the concept of incapacitating the victim through the use of drugs or alcohol within their rape statutes now. I think, by definition, if the victim has been drugged, her participation is without consent.
I'm not sure how they deal with the force and or resistance element in those cases, however. I think the argument is that when drugs or alcohol are involved, the consent issue outweighs the force/resistance issue.
44. ChristinO - 2/24/2000 6:28:34 PM
MsIt,
That makes good sense to me. I dislike the subjectivity in the law that allows for harsher punishments for people of color but I appreciate it when the issues aren't just black and white about guilt and culpability.
45. CalGal - 2/24/2000 7:00:29 PM
I think if the person was involuntarily put under the influence, consent is impossible--in fact, I think it becomes forcible at that point. If you remove the person's ability to resist or consent, it's the same as if you'd used a gun.
If the drugs were consumed deliberately, then that's a different issue.
46. CalGal - 2/24/2000 7:01:27 PM
But that still falls under rape. Requesting that a person prostitute him or herself is a different issue.
47. TabouliJones - 2/24/2000 7:07:37 PM
With regard to sexual assualt the Canadian Criminal Code defines consent as "the voluntary agreement of the complainant to engage in the sexual activity in question." The Code further states that, no consent is obtained when: "a) the agreement is expressed by the words or the conduct of a person other than the complainant; b) the complainant is incapable of consenting to the activity; c) the accused induces the complainant to engage in the activity by abusing a position of trust, power, or authority; OR d) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity."
The issue of consent by someone who is intoxicated would be considered under c).
48. CalGal - 2/24/2000 7:11:37 PM
c)? Are you sure? I would have thought b)--incapable of consent.
49. CalGal - 2/24/2000 7:12:30 PM
And c) is the one that I think is silly. Why not just say, "Women are children!" and be done with it?
50. TabouliJones - 2/24/2000 7:18:45 PM
Actually, I meant b) would cover the issue of consent in cases where the complainant was intoxicated.
with, c) there is plenty of wiggle room afforded by the use of the term "abuse". I don't think the provision is there to treat women as children. I don't think it has been judically considered, so I am not sure how a Court would read it. But, I doubt that a Court would take the view that women are incapable of fending for themselves, so to speak, when it comes to fending off advances from men in authority, etc.
51. ChristinO - 2/24/2000 7:31:24 PM
I don't see that it is specific to women. True, women are more often the victims of sexual assault than men but this doesn't mean that men don't suffer as well.
52. CalGal - 2/24/2000 7:33:55 PM
Agreed, but the law was sourced in concern for women, not men.
53. TabouliJones - 2/24/2000 7:36:11 PM
True, it is a non-gendered definition. But, sexual assault is generally a crime committed by men against women, so it is natural to discuss the issue in terms of gender.
In the U.S. is there a distinction between rape and sexaul assault? The Canadian Code no longer speaks of rape to avoid confusion with old common law which made penetration a required element in the crime of rape.
54. CalGal - 2/24/2000 7:40:29 PM
As I said earlier--basically, if someone comes up to you and demands that you prostitute yourself (exchange sex for something of value), then it is solicitation, not rape. If the woman prostitutes herself, then why should she be able to come back later and say it was rape?
If a manager came up to an employee and says, "Have sex with me if you want to get promoted" or if the manager says, "I won't lay you off in the coming round if you have sex with me"--the employee engages in the transaction willingly and takes the benefit from it.
And if we're going to call it rape--which is ludicrous--then why not call the request attempted rape? Then the employee has the ability to run to the cops when such a request is made, report the manager, and not have to have sex in order to cry rape.
55. ChristinO - 2/24/2000 7:43:26 PM
So the law won't apply to men? "You're a man so obviously no one could take advantage of you sexually"
A good friend of mine in highschool did a really dumb thing. He cheated on his girlfriend with a friend of his mother's. He was 18 so he was legal but when he didn't want to continue the relationship the woman threatened to tell both his mother and his girlfriend about it unless he continued to service her.
Granted he had the choice to come clean and suffer the consequences of cheating on his girlfriend, but that does not make this woman any less a sexual predator. She blackmailed him into having sex with her. Why should that just be a case of "tough titty" for this guy?
56. CalGal - 2/24/2000 7:47:17 PM
Why on earth is she a sexual predator? He plays, he pays.
57. CalGal - 2/24/2000 7:47:59 PM
BTW, I agree that sexual assault laws should apply to both men and women equally. But the case you mention isn't rape. Although I'm sure that there are some 18 year old women who could make the case for it.
58. TabouliJones - 2/24/2000 7:48:26 PM
There was a case which arose in Ontario about thirty years ago which might help give context to the reasoning behind c) in the above posts re. the vitiation of consent. The case antedated the current Canadian approach to sexual assault. The woman's gynecologist told a woman that there was something medically interesting about her sexual parts, and asked her if it would be o.k. if one of his colleagues examined her. However, the colleague was not a doctor but simply a friend who wanted to check out the woman's genitals. Under the old law, there would have been no sexual assault because she ostensibly consented to the examination. Part c) would cover that situation today as an "abuse" of trust or authority. Most likely it was included to cover such previously uncovered situations.
59. CalGal - 2/24/2000 7:52:22 PM
It seems to me that'd be a violation of doctor/patient privilege. Who got tagged with sexual assault, both of them? Or just the doctor?
Surely there's another type of crime that falls under, other than sexual assault?
Mind you, I'd sue the motherfucker for every penny. But that's a civil courts issue. I'm just not seeing how that counts as rape or sexual assault.
60. jexster - 2/24/2000 7:57:20 PM
Cal - its the patient's privilege not the doctor's
61. MsIvoryTower - 2/24/2000 7:57:28 PM
In the U.S. is there a distinction between rape and sexaul assault?
Well, we're getting into my zone of "confusion" here, but I believe it depends on the state. Under the Model Penal Code (MPC) there is a distinction between rape and sexual assault. The MPC defines Rape and Related Offenses where the latter is termed 'Gross Sexual Imposition'.
Here's the MPC definition of Gross Sexual Imposition (it's a loaded gun [so to speak] as well):
A male who has sexual intercourse with a female not his wife commits a felony of the third degree if;
(a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or
(b) he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; or
(c) he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband.
Texas does not appear to distinguish between rape and sexual assault. In fact, its rape statute is not entitled 'Rape' but 'Sexual Assault'.
WRT the MPC definition above, I have a hard time not laughing over some of the language
- what is a woman of ordinary resolution?
- what about wives?
- what would constitute a mental defect? delusions? fantasies?
- and then there's the notion that a man seeks to sneak into a woman's bed pretending to be her husband and she wouldn't know......
62. TabouliJones - 2/24/2000 8:00:14 PM
CalGal,
In Canada, sexual assault now exists as a category of assault. There is no separate crime of rape per se. Assault is any unwanted, or offensive, touching, and it is a crime that admits of various degrees. If I poke someone in the shoulder, technically that is assault. Similarly, if I beat the crap out of someone that is an assault. In each case, it is the same criminal category that applies to impugn the conduct. The same holds for sexual assault. Any unwanted sexual touching is covered by the same set of laws. Of course, the closer the case comes to actual rape, the more serious the consequence.
63. TabouliJones - 2/24/2000 8:04:40 PM
MsIt,
Rape was removed as a category to avoid such confusion. Under the common law (where Canadain and American concepts of rape originated), it was a legal impossibility to rape your wife. the sexual assault category was created in the criminal code to get rid of many of the sexist anachronisms still clinging to the definition of rape.
Incidentally, criminal law falls under exclusive Federal jurisdiction in Canada. There is no variance between provinces.
64. jexster - 2/24/2000 8:04:57 PM
243.4. (a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person
touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A
violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding
two thousand dollars ($2,000); or by imprisonment in the state prison
for two, three, or four years, and by a fine not exceeding ten
thousand dollars ($10,000).
(b) Any person who touches an intimate part of another person who
is institutionalized for medical treatment and who is seriously
disabled or medically incapacitated, if the touching is against the
will of the person touched, and if the touching is for the purpose of
sexual arousal, sexual gratification, or sexual abuse, is guilty of
sexual battery. A violation of this subdivision is punishable by
imprisonment in a county jail for not more than one year, and by a
fine not exceeding two thousand dollars ($2,000); or by imprisonment
in the state prison for two, three, or four years, and by a fine not
exceeding ten thousand dollars ($10,000).
(c) Any person who, for the purpose of sexual arousal, sexual
gratification, or sexual abuse, causes another, against that person's
will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery....
65. MsIvoryTower - 2/24/2000 8:05:09 PM
Tabouli
I'm laughing at your example in #58. I just read a case from the 1970's where a woman received a call from a "Dr. Stevens" who told her that recent tests of hers revealed a fatal disease. That she had two choices for treatment: one a painful, lengthy procedure costing around $10,000, the other, injection of some specially treated semen through intercourse with a donor. The latter procedure would only cost $4500.
The woman told the doctor she couldn't afford $4500, so he said he could arrange it for a $1000 deposit. She agreed. He arranged for her to arrive at one of his temporary offices in a hotel for the next day. She was to bring the money with her and give it to the man who arrived.
She goes, gives the guy the money and has sex with him.
Later, she seemed to have figured out that something fishy was up, and pressed rape charges. The dude was acquitted.
I was laughing really, really hard as I read that case. Sometimes it's difficult to muster the sympathy necessary for the victim.
66. TabouliJones - 2/24/2000 8:06:42 PM
In the doctor case referred to above, there was no crime whatsoever under the old law. The doctor didn't infringe the criminal law as it then stood.
67. jexster - 2/24/2000 8:07:39 PM
CA Penal Code 261. (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
(1) Where a person is incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person committing
the act. Notwithstanding the existence of a conservatorship pursuant
to the provisions of the Lanterman-Petris-Short Act (Part 1 commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.
(2) Where it is accomplished against a person's will by means of
force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the person or another.
(3) Where a person is prevented from resisting by any intoxicating
or anesthetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known by the
accused.
(4) Where a person is at the time unconscious of the nature of the
act, and this is known to the accused. As used in this paragraph,
"unconscious of the nature of the act" means incapable of resisting
because the victim meets one of the following conditions:
68. MsIvoryTower - 2/24/2000 8:08:15 PM
I suppose I shouldn't be so irreverent.....
69. CalGal - 2/24/2000 8:08:41 PM
At what point are we going to remove the "other than the spouse" clause in rape/sexual assault law?
70. jexster - 2/24/2000 8:09:01 PM
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud
in fact.
(5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced
by any artifice, pretense, or concealment practiced by the accused,
with intent to induce the belief.
(6) Where the act is accomplished against the victim's will by
threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(7) Where the act is accomplished against the victim's will by
threatening to use the authority of a public official to incarcerate,
arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official. As used
in this paragraph, "public official" means a person employed by a
governmental agency who has the authority, as part of that position,
to incarcerate, arrest, or deport another. The perpetrator does not
actually have to be a public official.
71. MsIvoryTower - 2/24/2000 8:09:24 PM
Tabouli
RE: Incidentally, criminal law falls under exclusive Federal jurisdiction in Canada. There is no variance between provinces.
That would make learning all this so much easier.....
72. CalGal - 2/24/2000 8:09:27 PM
Ms,
Hell, no. I laughed too. The guy shouldn't have been on trial for rape. Fraud, maybe.
I suppose these days, it would be rape.
73. TabouliJones - 2/24/2000 8:11:22 PM
MsIt,
Re. message 65. I read one case in which a music teacher convinced his student fellatio would make her a better singer. She bought it and later charged him under the old rape laws. The teacher was acquitted.
74. jexster - 2/24/2000 8:11:23 PM
CA Penal Code 262. (a) Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse accomplished under any of the following circumstances:
(1) Where it is accomplished against a person's will by means of
force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the person or another.
(2) Where a person is prevented from resisting by any intoxicating
or anesthetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known, by the
accused.
(3) Where a person is at the time unconscious of the nature of the
act, and this is known to the accused. As used in this paragraph,
"unconscious of the nature of the act" means incapable of resisting
because the victim meets one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's fraud
in fact.
75. jexster - 2/24/2000 8:12:01 PM
(4) Where the act is accomplished against the victim's will by
threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(5) Where the act is accomplished against the victim's will by
threatening to use the authority of a public official to incarcerate,
arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official. As used
in this paragraph, "public official" means a person employed by a
governmental agency who has the authority, as part of that position,
to incarcerate, arrest, or deport another. The perpetrator does not
actually have to be a public official.
76. MsIvoryTower - 2/24/2000 8:12:18 PM
Jexter
CA Penal Code goes much farther in liberalizing rape laws than Texas.
I see 6 and 7 above cover the hypo Christin offered earlier, and the possibility of a blackmail element to the scenario.
77. jexster - 2/24/2000 8:13:02 PM
Cal - you just have to keep it in your pants as it were. I can only cut and paste so fast.
78. CalGal - 2/24/2000 8:14:48 PM
Jex,
I wasn't blaming you for a slow cut and paste job. It's just that there is no reason for distinguishing between the two.
79. MsIvoryTower - 2/24/2000 8:17:20 PM
Tabouli,
re #73
Given that it was a student teacher relationship, I'd want to see some sort of sexual assault charge stick, although I'm not sure it'd be rape (as we've traditionally thought about it).
My case with the dumb woman and the fake doctor, however, came out according to how I see this thing. I don't see why the law should allow women an out for their incredible stupidity. As far as I know, stupidity isn't a defense in any other crimes.
80. CalGal - 2/24/2000 8:17:41 PM
And 6 and 7 are nothing more than solicitation. I can see making abuse of authority a crime, if someone is a public official.
If the landlord says I have to have sex with him or I get evicted, can I go to the cops and say that he's attempted to rape me?
If he could be charged with attempted rape and I don't go to the cops, wouldn't that technically be consent?
81. MsIvoryTower - 2/24/2000 8:23:58 PM
Btw, Calgal
The wife exemption is still alive and well in most states, although it's been modified from its old common law form. Used to be a wife could never be raped, by definition, because once she became a wife she gave irrevokable consent to any and all sex between her and her spouse...until death do they part.
Modern laws now have moved away from such an extreme form of the wife exemption, but most states still refuse to acknowledge that a woman can be raped by her husband if she is still co-habitating with him.
82. wonkers2 - 2/24/2000 8:24:41 PM
Two concepts underlying criminal law are free will and "ought implies can" if I remember correctly from my long-ago ethics class. That is, before it makes sense to say someone ought to do something, they must be
able to do it. Logically it makes no sense to say someone should do (or not) do something they are incapable of doing. For example, we generally don't punish or execute demonstrably mentally ill people. (We try unsuccessfully to treat them, release them, and they do it again!) And we don't generally punish mentally incompetent people whose intelligence is significantly below normal and who are incapable of understanding right from wrong or participating in their defense. And we treat children under the law differently from adults, or we used to at least.
83. MsIvoryTower - 2/24/2000 8:28:16 PM
To me this is a very tricky area, and frought with potential for abuse.
In addition, what if the partners have a rather physical (violent) sexual relationship to begin with? One that may even have an element of resistance as sexual foreplay? When would the husband (or wife) ever recognize non-consent, as in, "No, No, No, I really, really really do not want to have sex with you."
84. jexster - 2/24/2000 8:28:16 PM
Cal -
There are 2 code sections because the original statute was appopriately premised on the fact that "I do" means what it says. :)
85. ChristinO - 2/24/2000 8:31:21 PM
MsIt,
Re:83
That's what "safewords" are for.
86. Angel-Five - 2/24/2000 8:33:02 PM
83: For the wife? Well, the guy will be asleep.
87. MsIvoryTower - 2/24/2000 8:34:25 PM
Christin
Can you imagine a jury having to sift through the evidence?
"Did she say the safeword or not?"
"She said she did"
"He said she didn't, and then he proceeded to rough her up..."
I'm sorry, but my active imagination runs away from me sometimes, and I simply end up on the floor with laughter....
88. TabouliJones - 2/24/2000 8:35:07 PM
"In addition, what if the partners have a rather physical (violent) sexual relationship to begin with? One that may even have an element of resistance as sexual foreplay?"
That is the exact scenario that is currently being considered by the Supreme Court of Canada. As it stands now, if the complainant did not at any point say or gesture: "yes I want to have sex" then there is a sexual assault. However, the accused can claim honest but mistaken belief that consent was granted when it had not in fact been granted. The wrinkle, however, is the rape shield law which severely limits the accused's ability to enter evidence with respect to the complainant's sexual history, including her sexual history with the accused.
89. ChristinO - 2/24/2000 8:35:12 PM
Hell, forget this he-said/she-said I want VIDEO!!!
90. ChristinO - 2/24/2000 8:38:20 PM
Tabouli,
This is starting to sound like a U.S. campus where you have to ask before everything you do and recieve a yes answer to proceed.
"May I kiss you on the lips"
"Yes"
"May I place my hand on your chest"
"Yes"
"May I place my hand on your chest inside your shirt"
"You didn't say mother may I. Take five baby steps back, bucko!"
91. MsIvoryTower - 2/24/2000 8:39:44 PM
Tabouli
Despite my momentary lack of respect for the seriousness of the topic, I appreciate you hanging in there with me on this.
I think there is the same defense here, depending on the state, and the level of culpability attached to the consent element. The Supreme Court decision I referenced earlier has overruled any rape shield laws that would bar evidence that bears directly on the issue of the defendants "mistake of fact".
92. TabouliJones - 2/24/2000 8:42:11 PM
ChristinO,
It doesn't reach that level of absurdity. Realistically, consent can be, and usually is, inferred from activity or acquiescence (to use a clumsy word). However, the basic problem is that the complainant will be saying, no co there was no consent. The defendant will say, yes there was consent. Then it becomes a matter of who you believe.
93. Angel-Five - 2/24/2000 8:45:39 PM
Oh, christ, don't start about that place, I've been there. The nightlife sucks.
94. ChristinO - 2/24/2000 8:46:08 PM
Tabouli,
Sorry I was being silly. I do think it's a pretty good law. I can be kind of wishy washy about this topic since I see abuses on both sides. My wish is that people would grow up and take responsibility for their actions/lives and not abuse one another but you know what they say--"Wish in one sh@t in the other..."
95. Angel-Five - 2/24/2000 8:46:44 PM
TJ:
No, no, dude, I've been to Antioch. It can get pretty ridiculous sometimes.
96. ChristinO - 2/24/2000 8:47:23 PM
hahaha didn't realize I'd picked a symbol that actually spells a word in the wrong tense. Obviously time for me to go home.
Evening all!
97. TabouliJones - 2/24/2000 8:50:02 PM
MsIt, ChristinO,
No need to apologize. I didn't take offense to anything said, and I don't think that your levity was inappropriate.
98. MsIvoryTower - 2/24/2000 8:50:37 PM
Christin, A5
You do hit on the heart of the problem with focusing only on consent as "affirmative and freely-given agreement". At some point it completely blurs the line between seduction and rape. If women weren't so ambivalent about wanting to be "talked into" having sex, this wouldn't be such a potential problem for male-female relations.
99. TabouliJones - 2/24/2000 8:51:34 PM
MsIt, ChristinO,
No need to apologize. I didn't take offense to anything said, and I don't think that your levity was inappropriate.
100. TabouliJones - 2/24/2000 8:58:59 PM
"You do hit on the heart of the problem with focusing only on consent as "affirmative and freely-given agreement". At some point it completely blurs the line between seduction and rape."
This is where issues of prosecutorial discretion and basic common sense come into play. Vexatious claims are made all of the time, in most areas of law. That is why comparisons with assault in general may be helpful. Technically, if I deliberately bump someone with my shoulder while passing by them in the street, this is assault. However, a prosecutor would never pursue the case and I judge would make it damn near impossible to enforce the claim -- depsite its technical viability. Hopefully, the same sort of common sense approach will take hold in the area of sexual assault.
101. TabouliJones - 2/24/2000 9:00:13 PM
that is a judge, not I judge.
102. Angel-Five - 2/24/2000 9:00:27 PM
When foreplay consists of signing on the dotted line, well, that's tons worse than having to look for a condom.
Date rape isn't really common around here, although something that some people might call date rape is. I'm speaking of women feeling a bit uncomfortable about having sex but doing it anyway. (And yes, it happens to guys, too, but we usually call that 'generosity').
I have no problem in theory with institutionalizing something that lets women feel more secure about saying 'no' to their horny date, but the only place I've seen it in practice is Antioch and I don't think it works there very well. There's just really no substitute for being able to say 'no' all on your own.
103. Angel-Five - 2/24/2000 9:00:31 PM
When foreplay consists of signing on the dotted line, well, that's tons worse than having to look for a condom.
Date rape isn't really common around here, although something that some people might call date rape is. I'm speaking of women feeling a bit uncomfortable about having sex but doing it anyway. (And yes, it happens to guys, too, but we usually call that 'generosity').
I have no problem in theory with institutionalizing something that lets women feel more secure about saying 'no' to their horny date, but the only place I've seen it in practice is Antioch and I don't think it works there very well. There's just really no substitute for being able to say 'no' all on your own.
104. MsIvoryTower - 2/24/2000 10:40:46 PM
Tabouli
Something I was meaning to ask you earlier; given that Canada has eliminated any strict liability in criminal laws, I don't see how it would be possible to have the equivalent to statutory rape in the US. How does Canadian law deal with the issue of sexual intercourse with an underage child? Consensual or not? What level of culpability is required?
Jexter,
I looked for a level of mens rea (guilty mind) required in the CaPC for rape and didn't see one. Is there one identified, and if so, what is it? Knowledge? Recklessness? Intent?
105. TabouliJones - 2/24/2000 11:39:58 PM
MsIt,
You can still have statutory rape. The elimination of strict liability simply means that the defendant can plead that he or she thought the complainant was of legal age. In order to make this claim, however, the defendant must have taken "all resonable steps to ascertain the age of the complainant." What constitutes reasonable, is a question of fact to be determined at trial. If someone underage consents to sex with an adult, it is still statutory rape, or "sexual exploitation" according to the terminology of the Criminal Code.
106. Jonesy - 2/25/2000 12:13:25 AM
Once again, those ever reasonable Canadians are in the lead. I believe that there should be no strict liability for any crime that carries a penalty of imprisonment. If it isn't important enough for a jury, it isn't important enough for imprisonment. If a crime is serious enough to merit a serious punishment, it merits a full consideration of the mental state of the accused.
107. MsIvoryTower - 2/25/2000 8:24:43 AM
Jonesy
I'm in full agreement with your position except in cases of statutory rape where the age of the child is 12 or under. The MPC has the threshold at 10, but I think that too low. Most states put the threshold at 16 or 18, which I think, in this day and age, is too high.
Sexual offenses with children are the only category of crimes I'm willing to impose strict liability on, otherwise, I, too, think the Canadian position is the most appropriate one.
108. MsIvoryTower - 2/25/2000 8:58:02 AM
Tabouli
The elimination of strict liability simply means that the defendant can plead that he or she thought the complainant was of legal age.
But then this creates a culpability level for the "underage" element of the offense then. I thought strict liability allowed for no culpability level on the material elements. (That is, in the statutory rape situation.)
109. TabouliJones - 2/25/2000 11:57:54 AM
MsIt,
How I understand it, which may very well be wrong or misleading, is that the elimination of strict liability simply means that the accused must be able to plead some sort of defense akin to reasonable diligence. It is o.k. to deem a mens rea upon proof of the actus reus, but the defendant must be able to plead some sort of defense.
110. CalGal - 2/25/2000 12:02:30 PM
I still have a question: If Christin has sex with her landlord to prevent her from being evicted, is that rape?
111. TabouliJones - 2/25/2000 12:03:52 PM
Actually, let me amend that last sentence: It is o.k. (in certain circumstances)to deem a mens rea upon proof of the actus reus, but the defendant must be able to plead some sort of defense.
I wish I had a Canadian criminal law casebook handy, because then I could double check to see if I am on the right track. I don't thin that you can get the whole gist of the Canadian approach to the matter from the Dickson judgment in Regina v. Sault Ste. Marie. That decision has probably been reconsidered, nuance and qulaified to some degree, since 1978.
112. TabouliJones - 2/25/2000 12:07:26 PM
CalGal,
The way you frame the question is misleading in the Canadian context. There wouldn't be a rape per se, but, depending on the facts, it might be possible to pursue a charge of sexual assault. However, I am doubtful that a sexual assault charge would stick.
113. ChristiPeters - 2/25/2000 1:05:11 PM
Interesting discussion. I'm sorry I can't participate as I'd like.
Re CalGal's question about Christin's landlord example. I don't know what the law says, but my moral sense says that is not rape, it is sexual harrassment. That's why I like good, clear sexual harrassment laws on the books - to distinguish this type of situation form rape. I think coercion to have sex of the "I'll fire you/evict you if you don't" type is wrong and the victim should have legal recourse and the perpetrator some punishment.
I, personally, draw distinct lines between sexual assault, statutary rape, and sexual harrassment. I see them as separate, although related issues.
I really really really have a problem with the "it isn't rape if you are married to him" thing. I knew someone whose husband raped her at knifepoint, at gunpoint, and tied to their bed. Yes, of course, she divorced him, but that's not good enough for me. He should be in jail.
114. PsychProf - 2/25/2000 1:58:43 PM
115. ChristinO - 2/25/2000 1:59:36 PM
Christi,
I like your definition better. I was trying to think of a hypothetical where coersion exists but not physical force obviously my example wasn't very good.
MsIt
Re: Message # 98
"If women weren't so ambivalent about wanting to be 'talked into' having sex, this wouldn't be such a potential problem for male-female relations."
I both agree and disagree with this statement. I think it only fair to note that if men didn't feel challenged to talk women into sex we also would have less problems.
I don't intend to open up the whole "gender differences and sexual identity" discussion but it appears to me that we are trying to establish a sane and logical law that doesn't actually fit the reality of our society which has a pretty extreme double standard. The thing that I'm curious about is whether it is generally accepted that law is shaped by society or society is shaped by law.
It seems to me that when we attempt to shape society with law we mostly fail. I'm thinking especially of Prohibition and the current War on Drugs. Obviously people like to drink and do drugs. The law has never been effective in changing this and yet we continue to make laws in the obviously mistaken hope that they will curb drug and alcohol abuse.
To steer back to topic a bit: If we continue to socialize women so that they are victimized by sex and yet write our laws in such a way that we don't recognize it what have we accomplished? Are we going to teach women to "Grow up and deal with it" on a case by case basis? That seems ineffective at best.
116. TabouliJones - 2/25/2000 3:07:58 PM
ChristinO,
I sympathize with your concerns about what sexual assault laws say about society's general attitude towards women. The goal, I suppose, is to carve out sexual assault laws which avoid adopting a paternalistic attitude towards women while also avoiding the situation engendered by traditional rape laws: a situation in which much abhorrent behaviour was left uncensured by the law and it was very difficult to prosecute a man for rape, no matter how egregious his behaviour. IMO, the modern sexual assault laws have sufficient flexibility to achieve this goal -- in time, with sensible judicial application.
117. ChristinO - 2/25/2000 3:12:25 PM
Tabouli,
I tend to agree with you although I am concerned about the exceptions for spouses.
118. TabouliJones - 2/25/2000 3:14:47 PM
The exceptions for spouses are a vestige of the common law approach to rape. When I say modern sexual assault laws, I mean those which do not have a spousal exception.
119. Toenails - 2/25/2000 3:17:10 PM
"If Christin has sex with her landlord to prevent her
from being evicted, is that rape?"
CalGal: I've not been following this entire discussion, but taking your question (above) by itself, it sounds more like prostitution than rape.
120. ChristinO - 2/25/2000 3:20:34 PM
Toenails,
I've said that it was a bad example--- more harassment than rape---- but the sentence above is misleading since it implies that I'm already going to be evicted but I think that sexual favors will defray that. The original example was that the landlord says "if you don't put out then I'll evict you".
121. TabouliJones - 2/25/2000 3:21:26 PM
I think the prostitution analogy is inapt.
122. CalGal - 2/25/2000 3:24:07 PM
Toe, TJ:
I described it as prostitution myself, originally.
123. Angel-Five - 2/25/2000 3:30:15 PM
"If Christin has sex with her landlord to prevent her
from being evicted, is that rape?"
Oh, if only this weren't such a serious conversation.
It's coerced, I think. I don't believe it could be called prostitution under the original terms of the query.
124. ChristinO - 2/25/2000 3:32:21 PM
Angel,
It's okay, I'm laughing my ass off. My landlord is an 85 year old lady I've never spoken to.
125. Dantheman - 2/25/2000 3:32:53 PM
It may depend upon who is making the offer. If Christin makes the offer (as Annette Bening did in The Grifters), it should be prostitution. If the landlord does, it wouldn't be rape (since no force was being used), but probably would be some form of harassment.
126. Angel-Five - 2/25/2000 3:34:04 PM
Oh, good. Then I can say 'It isn't prostitution, it's Friday.'
127. CalGal - 2/25/2000 3:35:19 PM
I thought it was Christin who used the landlord question originally? Didn't mean to cast aspersions on her or her landlord.
The landlord is certainly offering something of value in exchange for sex. If the tenant accepts the value, what else is needed to make it prostitution?
128. CalGal - 2/25/2000 3:36:43 PM
It's harassment if Christin reports it before it happens, yes? But if she has sex with the landlord, I don't see how she can then claim harassment--she's accepted what he had to offer in exchange for sex.
129. Angel-Five - 2/25/2000 3:37:43 PM
The landlord as I understood it was saying 'put out or get out'. They may be offering compensation but so is a punk who pulls in a streetwalker and says 'I'll give you twenty bucks if you blow me, and I'll shoot you if you don't.' No one is going to call that prostitution.
130. Dantheman - 2/25/2000 3:38:41 PM
CalGal,
It's still harassment, even if she agreed to do it. Think of the boss telling you he'll fire you if you don't sleep with him. whether you do or don't, it's still harassment.
131. Angel-Five - 2/25/2000 3:39:21 PM
A woman who is pressured by an employer to have sex as a condition of getting the job she needs to feed her kids can successfully claim harassment after the fact.
132. Angel-Five - 2/25/2000 3:40:25 PM
Kross Post.
133. Angel-Five - 2/25/2000 3:41:42 PM
Now, if Annette Bening goes to the landlord... it's prostitution. I think.
134. Angel-Five - 2/25/2000 3:41:46 PM
Now, if Annette Bening goes to the landlord... it's prostitution. I think.
135. CalGal - 2/25/2000 3:42:06 PM
No, if you threaten to shoot someone it becomes rape--at least according to the laws Jex posted earlier.
But "put out or get out" means that she put out--and took the value. If she reported the landlord before having put out, then the landlord is guilty of harassment. But if she takes the value, it's prostitution.
For one thing--at least in this country--I don't think a landlord could just capriciously kick someone out. (at least, not in California). So presumably, the landlord has reason for eviction, and is willing to overlook it if Christin puts out. But even in the case where it was capricious, I don't see how it can be harassment if Christin doesn't report it before having sex with the landlord. Once she has sex, she's accepted the solicitation--and sex in exchange for something of value is prostitution, I believe. (unless it's marriage, of course)
136. Angel-Five - 2/25/2000 3:44:10 PM
But these conditions are never presumable if an empowered person exerts that power over a dependent person in order to extort sex from them. That's the way these things go.
137. Angel-Five - 2/25/2000 3:45:37 PM
And the before/after thing, as stated, is irrelevant. You can report it after the fact, even if you acquiesced, and still successfully press the charge and win compensation.
138. ChristinO - 2/25/2000 3:46:50 PM
CG,
Yes in California the law is on the side of the renter, but leaving rental laws out of this the point is that under threat of losing the roof over my head I consent to have sex with my landlord. The issue is coersion and abuse of power not actual tenant rights.
139. Angel-Five - 2/25/2000 3:47:03 PM
Christ, this place is usually thick with lawyers. Where's one when you need them? Stumping for McCain is where.
140. CalGal - 2/25/2000 3:47:52 PM
Think of the boss telling you he'll fire you if you don't sleep with him. whether you do or don't, it's still harassment.
I agree that this is what the laws state. However that goes back to what I was saying earlier--it assumes women are children. She can report him. If she chooses not to report him, but takes the value (continued job), then she has prostituted herself.
It's even more problematic if the boss says, "Have sex with me or you won't get a promotion". She has sex, gets the promotion. Well, who is to say that she was entitled to the promotion if she hadn't had sex?
If it's harassment after she has sex, it's harassment before she has sex, so she can report it then. If she doesn't report it, it was her choice to accept the value.
141. CalGal - 2/25/2000 3:51:51 PM
Your boss comes to you and said, you have to commit fraud or I'll fire you. So you commit fraud. Do you go to jail if you get caught?
142. Dantheman - 2/25/2000 3:52:05 PM
CalGal,
Harassment is a crime of power, not sex. It assumes that the harasser (the boss or landlord in our cases) has power over the victim, regardless of which sex each is. Therefore the employee is not being treated as a child because she's a woman, she's being treated as a powerless victim because it's her boss that's making threats.
A-5,
I'm a (real estate) lawyer. I am not flaunting it here because this isn't my area of expertise.
143. Dantheman - 2/25/2000 3:53:45 PM
CalGal 141,
Usually. You generally can go to the authorities to uncover the fraud afterwards, if necessary. Sex is treated differently here.
144. ChristinO - 2/25/2000 3:55:34 PM
Cal,
I think your view may be skewed since you have high demand skills and the idea that you couldn't find work if you wanted it is laughable. For a woman who barely has a highschool education the choices are limited. It is not always or maybe even usually easy to press a harassment suit nor is it assured that you won't suffer by bringing such a suit.
145. Angel-Five - 2/25/2000 3:58:08 PM
God, I hate ICQ. Is it goofy for everyone today or just me?
146. Angel-Five - 2/25/2000 4:00:02 PM
The important bit is that you can still press charges against your boss. If you do something illegal, in most cases, you get charged. Having sex isn't illegal.
147. ChristinO - 2/25/2000 4:00:34 PM
Mine has been sucky for three weeks but that's due to our firewall and some freaking hacker trying to get into the site.
148. Absensia - 2/25/2000 4:02:10 PM
My ICQ has been flaky since I installed W98.
149. ChristinO - 2/25/2000 4:02:22 PM
"Having sex isn't illegal."
That depends on what state you're in.
150. CalGal - 2/25/2000 4:02:29 PM
Dan,
You generally can go to the authorities to uncover the fraud afterwards, if necessary. Sex is treated differently here.
I agree it is treated differently. But my point is, it shouldn't be. It is treated differently because women are given a pass on taking responsibility for their choices. If exchanging sex for value is against the law (and it is) then it shouldn't be treated any differently from fraud. In both cases, the employee should be able to immediately report it to the authorities, and if they don't, they can pay the piper when they get caught. They accepted the benefit (continued employment) and committed a crime.
Christin,
I think your view may be skewed since you have high demand skills and the idea that you couldn't find work if you wanted it is laughable.
If the same employee would go to jail for committing fraud, then the bit about high demand skills has nothing to do with it. Besides, you know full well that sexual harassment claims are made by women in all professions--highly skilled or not. So why do so many women accept the exchange? Because the value of what the boss is offering is greater than the value of not accepting.
151. CalGal - 2/25/2000 4:04:05 PM
Having sex isn't illegal.
Having sex in exchange for something of value is most certainly illegal. In all of these cases, the person is having sex in exchange for something of value (keeping one's job, getting a promotion, and so on).
152. Toenails - 2/25/2000 4:04:35 PM
Just being "a lawyer" doesn't answer the question. The discussion here has been reasonably apt, whether or not the participants are lawyers. As in the case of most legal issues, the ifs/or/buts rule.
Circumstances alter cases (to not exactly coin a phrase).
Essentially, though, it boils down to who proposes the sex as consideration for the non-eviction. If it's the landlord, it's at least harassment; if it's the tenant, it's quid pro quo, and (I'm pretty sure) that's true whatever the legal merits of the threatened eviction action.
153. ChristinO - 2/25/2000 4:13:05 PM
So the adult thing to do is lose your job and thereby your housing and maybe custody of your children to their crack-head dad or social services so that you can claim you made a responsible choice about sex while you wait for litigation to come through which you may not be able to win?
154. ChristinO - 2/25/2000 4:13:59 PM
Sorry, forgot to address the last post. 153 is to CG.
155. Dantheman - 2/25/2000 4:14:40 PM
CalGal 150,
1. As previously noted, harassment is a gender blind crime. Therefore, the issue isn't that women are being given a free pass for having sex. It's that the law recognizes the powerless of a subordinate in this situation.
2. Having sex is something that cannot be undone and often has greater psychological complications on the victim and his/her family than committing fraud would.
3. Committing fraud generally takes time, during which the victim can contact the authorities to prevent it from occurring. Sex in such circumstances usually takes place immediately.
4. Sex has the complicating factor that the harasser may be promising (or the victim may perceive the harasser as promising) something different than just a one-shot deal (i.e., a long term relationship which the victim may be willing to enter into)
5. As previously pointed out, consensual sex isn't illegal; fraud is.
156. Angel-Five - 2/25/2000 4:17:39 PM
Having sex for something of value is illegal? Not in all cases it isn't.
157. ChristinO - 2/25/2000 4:19:20 PM
"Having sex in exchange for something of value is most certainly illegal.
Having sex for money is illegal except in parts of Nevada. I'm not sure what the law says exactly regarding prostitution but I doubt there is anything about shacking up with someone who provides for you otherwise 30% of the "actresses" in LA would be in jail. These are absolutely sex for benefit relationships and to my knowledge they are not considered prostitution.
158. CalGal - 2/25/2000 4:20:17 PM
So the adult thing to do is lose your job and thereby your housing and maybe custody of your children to their crack-head dad or social services so that you can claim you made a responsible choice about sex while you wait for litigation to come through which you may not be able to win?
You are saying your response to the woman would vary based on your perception of the value? Does this mean that women with salaries of $50K a year should quit, but those with fewer options should have sex?
If not, then what difference does it make wheher she loses housing or the same standard of living?
Besides, suppose a woman has no job and decides to go into prostitution. Why? Because she wants to spare herself the loss of housing, custody, etc. Do the police give a damn? No. It's a crime. So why should it matter if you commit a criminal act to keep a job, rather than instead of a job?
And you still haven't told me how the employee who commits fraud to avoid being fired--who will usually go to jail--has any better options than the woman who has sex to avoid being fired. They're both on the street in the doom and gloom scenario you paint. Why should one be exempt and the other not?
159. CalGal - 2/25/2000 4:23:29 PM
Having sex for money is illegal except in parts of Nevada.
If your boss says, "Have sex with me and I'll give you a promotion", you are having sex for money. If your boss says, "Have sex with me or you're fired", you are having sex for money. If your landlord says, "Have sex with me and I won't evict you for back rent due", then you are having sex for money.
In fact, if your boss says, "Commit fraud or I'll fire you", you are committing a crime for gain--the gain being that you can keep your job. But in any event, you're off to jail in most cases.
160. CalGal - 2/25/2000 4:25:50 PM
Dan,
Unless you wish to argue that harassment laws didn't originate as a way to protect women, you're not saying anything I don't know. Yes, the laws protect both genders. The idiocy of the laws is due to the double standard for women.
161. CalGal - 2/25/2000 4:30:14 PM
Dan,
Sex in such circumstances usually takes place immediately.
Not only doesn't the sex take place immediately in most cases, the firing or negative consequences don't result immediately, either.
Sex has the complicating factor that the harasser may be promising (or the victim may perceive the harasser as promising) something different than just a one-shot deal (i.e., a long term relationship which the victim may be willing to enter into)
Oh, I see. So if the "victim" has sex with the boss because the boss promised a promotion and a long-term relationship, it's different than just a one-time fuck for a partnership?
Having sex is something that cannot be undone and often has greater psychological complications on the victim and his/her family than committing fraud would.
Apart from the fact that this is nonsense (consider the terror of fraud, when you'll go to jail if caught or be fired if you don't do it)--the entire point is that the person doesn't have to have sex.
162. ChristinO - 2/25/2000 4:30:18 PM
CG,
Dan explained the difference between sex and fraud rather well I thought.
I have said nothing about sex for a promotion. We've been talking about sex as opposed to loss of employment or housing. I'm questioning your sense of the word "gain". No one is offering a job for sex they are simply saying that if you do not have sex they will take your job away.
If you have five dollars in your pocket when you leave the house and five dollars in your pocket when you return home in the evening should you be grateful to all the muggers who essentially "gave" you that five dollars by not taking it?
163. Angel-Five - 2/25/2000 4:30:52 PM
If your boss says,
"Have sex with me or you're fired", you are having sex for
money. If your landlord says, "Have sex with me and I
won't evict you for back rent due", then you are having sex
for money.
If your landlord says 'have sex with me and I'll let you slide on rent, and I won't kill you' then by that logic you're having sex for money, which is patently ridiculous. But, hey, it's your logic, not mine. If your boss says 'have sex with me or you're fired', and you have sex, you in the legal sense are having sex because you're coerced and not because you're after money. I mean, what's next, 'she shouldn't have worn the dress?'
If your boss offers you a promotion in exchange for a sloppy headshot there is still an implied abuse of power whether or not the threat is ever made explicit.
164. Dantheman - 2/25/2000 4:32:16 PM
CalGal,
Your post 150 said that sexual harassment is treated differently than the fraud example because women are "given a pass on taking responsibility for their choices", even though it shouldn't be. I've given you 5 reasons why it is treated differently, only 1 of which deals with the gender issue. You haven't responded to the remaining issues (except 5) and instead continue to insist it's a double standard for women when it's not. One of us is having trouble with reading comprehension here.
165. Dantheman - 2/25/2000 4:32:35 PM
Cross post.
166. CalGal - 2/25/2000 4:34:02 PM
If your landlord says 'have sex with me and I'll let you slide on rent, and I won't kill you'
At what point will you stop throwing in violence as a part of the deal? That moves it out of harassment/prostitution and into rape.
Leaving out violence, "Have sex with me and I'll let you slide on the rent" is pretty much straight prostitution.
167. ChristiPeters - 2/25/2000 4:34:14 PM
A minor point - not all states are like California. I had occaision to look up the law in NM when I had a dispute with my landlord there. In NM, a landlord can kick you out at any time with 30 days notice, no reason required. I was shocked to find out that this is true even if you have a lease which has not expired. IOW, if you are 2 months into a year lease in the state of NM and you decide you want to move, you are on the hook for the remaining 10 months rent unless you have an out built inot the lease. However, if you are 2 months into a year lease and the landlord wants to kick you out, all he/she has to do is give you 30 days notice and you are out in the street. The only exception was if the landlord wanted to kick you out because you had kids and they were going to a no-kids policy, they had to give you 6 months notice. Totally stinks, but there it is. Don't be surprised if the law varies wildly from state-to-state depending on whther landlords or tenants have the strongest lobby. (btw, this was in 1987, I hope the law has changed since then, but I don't know one way or the other)
168. ChristinO - 2/25/2000 4:37:22 PM
"You are saying your response to the woman would vary based on your perception of the value? Does this mean that women with salaries of $50K a year should quit, but those with fewer options should have sex?"
No. What I'm saying is that it isn't so easy or cut and dried as you wish to believe. yes any woman can pursue a sexual harassment suit, but most women do not have the option of walking immediately off their jobs, hiring a lawyer and then counting on being able to find work again in time not to become destitute. You are asking a woman not only to behave as "an adult" you are holding her to an unreasonable standard. This is equally true for a man in the same situation. If it were easy to fight harassment it wouldn't happen. That's the reason it's harassment because the harasser has the power and the victim has limited options.
169. ChristiPeters - 2/25/2000 4:37:30 PM
I disagree that the harrassment law assumes that women are children. First, it applies to men too. Second, I think it assumes that anyone in a position of power should not be allowed to use that power to harrass those subject to his/her power. It is about preventing abuse of power, not about the victim of the abuse. I don't care if the person being harassed has $1Mil in the bank or is destitute - the harassment is wrong and should be sanctioned.
170. ChristiPeters - 2/25/2000 4:38:20 PM
aaack - "NOT be sanctioned"
171. Dantheman - 2/25/2000 4:41:07 PM
CalGal,
1. What is your basis for believing the sex doesn't occur immediately? I've certainly seen the opposite.
2. Yes, it is very different if the superior says he'll get into a long term relationship with the subordinate.
3. The "terror of fraud"? If one has the chance to report it and prevent it from occurring (or undo the damage that's been done), the victim will almost certainly not face any prosecution. On the other hand, sex with a boss can (and frequently does) lead to a spouse feeling the subordinate was unfaithful and breaks up marriages.
172. Angel-Five - 2/25/2000 4:43:20 PM
At what point will you stop throwing in violence as a part
of the deal? That moves it out of harassment/prostitution
and into rape.
I'll do that as soon as you realize that a negative penalty, and not just an extension of the status quo, is what is entailed as possible outcomes of the landlord/ChristinO harassment. The degree of penalty seems to matter to you in this case, which shouldn't matter at all since you're talking about the principle of the thing. Doing something to avoid a greater penalty doesn't change the principle, it just makes it more understandable.
173. ChristiPeters - 2/25/2000 4:43:52 PM
Most women I have known who have actually experienced sexual harrassment and have not prosecuted the harrasser, made that decision based on the belief that if they went to court on this - win or lose, they would be unemployable in the future. I hope this changes, but my experience has been that they were right.
I happened to be sitting in on a meeting of the "bosses" during a co-op job where they were discussing various job applications. Two of them were rejected because the individuals had filed union complaints on the job. Since there were many many applications for very few jobs, they could get away with this. There would be no way for the rejected applicant to prove that this was the reason he was not hired.
This probably doesn't happen as much in a tight job market, but being treated fairly shouldn't depend on how tight the job market is.
174. Angel-Five - 2/25/2000 4:49:15 PM
You're also, for whatever peculiar reason motivates you, refusing to acknowledge what everyone else sees plainly as day -- there is an implied abuse of power in a landlord's entreaty to put out or get out. We aren't talking about two people who are searching each other out on a street corner, both equally empowered and choosing of their own free will to engage in a mutually beneficial act, and more importantly we can't assume that anything of the case is even remotely in the cards when the landlord comes knocking, because of that implied abuse, right from the start. It's coercion under the law, and whether or not you think that harassment laws are good for women and men is irrelevant to that fact.
175. CalGal - 2/25/2000 4:52:53 PM
Christin,
No one is offering a job for sex they are simply saying that if you do not have sex they will take your job away.
Yes. And anyone who makes that offer is guilty of an abuse of power. But anyone who takes up the offer is entering into the transaction, rather than refusing it--and they are taking the value offered. Besides, you know perfectly well that most sexual harassment law is a hell of a lot murkier than that.
The piece we're missing in this equation is this: why don't more people (particularly women) report harassment? Right away? Immediately, when it happens? Why do they instead submit to the offer?
I don't believe that it's desperation, since women in all income levels have been shown to submit to the offer--either for a promotion, or for a good review, or whatever.
I think it's because women in particular are used to the notion of using sex as a weapon--either defensive or offensive. As we all know, there are plenty of women who will use sex as a means of getting ahead--who will fuck the senior partner if it gets her that high-profile case--and there are also plenty of women who freeze like a deer in the headlights if someone challenges their security in any way--and fuck the lowlife boss if it keeps her job.
But really, what's the difference between the two? They are both using sex to keep ahead. Until we start expecting them to act like grownups--and expose them to the consequences of their behavior if they don't--I fail to see how things will change.
I certainly don't see any justification for laws that have to be explained in femspeak. Laws that can't stand on their own are certainly at least subject to question, and if the only excuse for them is "Well, performing sex as a way to keep one's job is more traumatic than committing fraud to keep one's job"--then I think we have a long way to go.
176. Toenails - 2/25/2000 4:54:09 PM
ChristiPeters (#167)
Landlord-tenant laws vary a great deal around the country, but even in New Mexico, a landlord can no longer evict because he wants to go to an all-adult operation. Discrimination against families with children is illegal now under Federal law. (Some exceptions for very small operations.)
And, in general, even in a landlord-friendly legal atmosphere like the New Mexico situation you describe, the Federal (and, sometimes, state) civil rights laws would often (but not always) serve as a brake on arbitrary evictions.
177. CalGal - 2/25/2000 4:54:21 PM
Christi,
I'm not arguing that harassment is just fine. I think it's wrong, and should be punished.
I am saying that if one accepts the offered exchange, why is that any different from committing any other crime in order to keep one's job?
178. PsychProf - 2/25/2000 4:57:04 PM
I was advised by the college lawyer that touching an undergraduate student(in this case a hug for a student whose mother was very ill) was inapprorpriate and open to harrassment litigation. How could I have proved myself innocent of a charge since clearly I touched the student...many of my male colleagues avoid female students whenever possible, keep their office door open at all times-privacy be damned, and are in fear of such claims whenever a female student challenges a grade. As for our workplace, clearly sexual in nature as all workplaces are, many are scared to act as men and women. I know of numerous cases in the corporate world of those who simply refuse to date within the work enviornment. I don't pretend to know about the law, but I sure as hell can see what goes on around me.
179. TabouliJones - 2/25/2000 5:00:06 PM
"I am saying that if one accepts the offered exchange, why is that any different from committing any other crime in order to keep one's job?"
If one accepts the exchange it is not necessarily prostitution. It is coerced sex. It is not a case of bargaining back and forth for an exchange of sexual services.
180. Angel-Five - 2/25/2000 5:01:13 PM
It isn't a crime. It's that simple. And you've done nothing at all to demonstrate that it's a crime except to reiterate that it is. Sex with the expectation of compensation does not constitute prostitution in and of itself in any lawbook I've ever heard of, and sex under coercion even less so.
181. TabouliJones - 2/25/2000 5:02:29 PM
PP,
"How could I have proved myself innocent of a charge since clearly I touched the student."
No sensible judge would find you culpable of any wrong doing in such a situation. If a woman brought such a charge, she would probably be politely laughed out of court. Your college lawyer was just exercising abundant caution, albeit it to a ridiculous extreme.
182. CalGal - 2/25/2000 5:04:03 PM
You're also, for whatever peculiar reason motivates you, refusing to acknowledge what everyone else sees plainly as day -- there is an implied abuse of power in a landlord's entreaty to put out or get out.
There's no question that the landlord is abusing power. I'm not arguing that he or she gets off scot-free. I'm just saying that the tenant who puts out has done so in order to get value for the sex. In many cases, it is a direct monetary value (not having to pay rent). That's prostitution.
BTW, I've already mentioned (and Toe has also said) that landlords can almost never just say, "Put out or you're out." In that case, the person could literally just pick up the phone and call the Fair Housing Bureau in their area and get the guy in serious trouble--all the while keeping their apartment. If they don't know that, well, since when do we allow ignorance of the law to excuse breaking it?
But if the tenant isn't reporting it because they know that they would be evicted if they report the landlord (e.g., back rent, too many people living in the apartment, whatever) then their actions are on them. In that case, they are submitting to blackmail, at the very least. And they are offering sex both as reason not to pay their rent (value) and as a means of paying for being able to break the terms of their tenancy.
183. TabouliJones - 2/25/2000 5:05:40 PM
Anyone here seen King Pin?
184. PsychProf - 2/25/2000 5:06:16 PM
Tabouli..Maybe...but the fear is there within all academic communities...many are afraid to tell a joke, no less make a pass. You haven't seen/experienced this?
185. Toenails - 2/25/2000 5:06:45 PM
If you're black and a cop asks you for your driver's license, looks like you'd better not reach for your wallet.
Actually, it's a hard case, and I certainly don't know that the verdict was wrong. Still, a complete free-pass walkaway is hard to take.
186. Angel-Five - 2/25/2000 5:07:04 PM
Yeh. I mean, what, you hugged her and her bra popped out her shirt-collar?
She was grieving in the sauna? What?
There's no doubt that harassment laws can be a wet blanket as far as flirting in the office, and even innocent actions as well, but I also think that's got a lot more to do with undue fear of harassment charges than the actual reality of how harassment works.
187. Dantheman - 2/25/2000 5:08:32 PM
CalGal 182,
"In that case, they are submitting to blackmail, at the very least. And they are offering sex..."
I will agree with you that they are submitting to blackmail. That isn't a crime. Moreover, as previously stated in post 125, the person doing the offering is important to determining whether it is prostitution. I'm glad you're coming around on this one.
188. PsychProf - 2/25/2000 5:10:23 PM
A-5...you have to know that such a charge alone will ruin one's career. By the time the judge throws it out it's too late.
189. TabouliJones - 2/25/2000 5:11:23 PM
PP,
I have seen similar instance of paranoia, but part of the problem is that people are mistakenly characterizing the applicable laws in an extreme (in terrorem) way. True, some people have abused the sexual harassment laws, but I am assuming that common sense will eventually prevail. In a few years, I trust that the lines will be more clearly and sensibly drawn --people's current paranoia aside.
190. Toenails - 2/25/2000 5:14:11 PM
Tabouli-Jones (189)
You're right. But transition periods are a bitch!
191. CalGal - 2/25/2000 5:14:12 PM
Dan,
They are also accepting monetary payment--usually in not having to pay the rent. That's the part that would make it prostitution.
192. TabouliJones - 2/25/2000 5:15:15 PM
PP,
Part of the issue also has to deal with the Institution's efforts to cover there ass. By implementing very strict harassment policies or convincing employees that any touching, however innocent, can be grounds for sexual harassment, they are shielding themselves from being found somehow culpable when one of their employees commits actual sexual harassment.
193. PsychProf - 2/25/2000 5:15:51 PM
Jones...the allegation is sufficient for public execution...
194. Angel-Five - 2/25/2000 5:15:52 PM
CalGal:
That's not prostitution, though -- you keep saying that it is, but you can't demonstrate why. It's not soliciting.
Here's your problem in a nutshell -- you are arguing from principle and then comparing the principle to the law. You are (unsuccessfully) trying to equate sex for value as prostitution, in principle, but then also amphibolizing your way into saying it's also prostitution in the legal sense when your definition of prostitution covers a lot of ground that doesn't match the legal definition. This is necessary for your argument 'if it's still fraud, then it's still prostitution' to fly but it's not a jump you can make.
So you retreat back to the principle, and then try and mount the argument again. But it won't work this time, either.
Forgetting for the moment that the coercion laws rule out prostitution in the case you're mentioning, you still have to make some sort of case that having sex for gain constitutes prostitution, legally (or for that matter in principle). And that's being generous, because the 'gain' in this example is merely to break even.
195. Dantheman - 2/25/2000 5:16:04 PM
CalGal,
No, that's the part that makes it submitting to blackmail.
196. TabouliJones - 2/25/2000 5:16:25 PM
"But transition periods are a bitch!"
Agreed. I do feel for those who have been subjected to vexatious claims.
197. TabouliJones - 2/25/2000 5:19:06 PM
The coercion negatives any notion that the woman has voluntarily agreed to have sex. No sex: no prostitution.
198. Angel-Five - 2/25/2000 5:19:38 PM
Prof:
I respectfully disagree that it will ruin one's career, because I know of many people who were convicted of sexual harassment (real harassment, not hugging a student) who had long and involved histories of sexual harassment complaints in prior jobs and communities, and even in current jobs and communities.
I'm not going to tell you that it's all good, or that it comes without a price, because I know that it does damage a career to a certain extent depending upon how believable the charges are and how bad they sound. But I think it's better than an environment where women have little protection against requests that they fuck to get and keep their jobs.
199. Dantheman - 2/25/2000 5:21:49 PM
TJ 197,
Your first sentence is right. The second isn't quite. More like no voluntary sex = no prostitution. No one is denying the sex took place.
200. TabouliJones - 2/25/2000 5:23:17 PM
Dantheman,
I meant to say no voluntary sex = no sex in the eyes of the law = no prostitution.
201. Angel-Five - 2/25/2000 5:23:40 PM
And you know? I can say that, because I have been sexually harassed by female superiors more than once, and I'm not just talking about someone asking me a sexually ambiguous question. I'm just sort of fortunate that my societal role allows me a lot more leeway in those positions than an unwed mother with no college education.
202. Indiana Jones - 2/25/2000 5:27:25 PM
A5: Cool! (High five)
203. ChristinO - 2/25/2000 5:31:00 PM
CG,
Quit changing the example. I'm not getting a break on the rent. I'm not behind on the rent. I haven't done anything wrong. I am a tenant in good standing with a nice pair and my landlord says he gets to touch them or I can find another place to live. The issue isn't rental laws. Let's assume I've got a three days before he puts my stuff in the street and changes the locks.
You're suggesting that if I submit to this and then file suit that not only should I be laughed out of court but I should be prosecuted for prostitution.
204. Angel-Five - 2/25/2000 5:31:16 PM
It really is a different for guys, I think, at least on average. You can still feel a little intimidated and worry a little bit about your job, but guys' experiences and reactions as the victim of sexual harassment usually sound a lot different from womens'.
(And, no, Indiana, it doesn't sound like a zipper opening.)
205. Angel-Five - 2/25/2000 5:33:07 PM
I just now saw, and got, the Kingpin reference.
206. Dantheman - 2/25/2000 5:33:37 PM
ChristinO,
"I'm a tenant in good standing with a nice pair..."
Care to demonstrate?
and since I'm not your landlord, boss or anyone else who has power over you, that's not harassment
207. TabouliJones - 2/25/2000 5:34:45 PM
A-5,
Its hard to keep the conversation in its proper perspective when you have that King Pin image in your head. Poor Woody.
208. Angel-Five - 2/25/2000 5:35:41 PM
Poor Woody, indeed.
209. Dantheman - 2/25/2000 5:38:22 PM
Sorry, but I need to head home. See you all next week.
210. ChristiPeters - 2/25/2000 5:39:13 PM
I think it's because women in particular are used to the notion of using sex as a weapon--either defensive or offensive. ...... and there are also plenty of women who freeze like a deer in the headlights if someone challenges their security in any way--and fuck the lowlife boss if it keeps her job.
While I don't deny such women exist, either I have led a very sheltered life (possible) or they aren't in the majority. Most women in my generation had real experiences that taught them you don't buck the boss. The old boy network would make sure you would never work again and the one most hurt if you refused and reported would be you.
I think (I hope) that this is changing. However, in spite of all the publicity and the paranoia, I don't think it has changed that much yet. It's not a woman/man thing, either. Whistle-blowers of either sex get screwed, no matter how many no-repercussion rules are out on paper.
211. ChristiPeters - 2/25/2000 5:42:17 PM
The old boy network would make sure you would never work again and the one most hurt if you refused and reported would be you.
I left out -Most of them also wouldn't put out. They accepted that if they refused their career/job there was over and hung tough until they could find another position. (Hard to build seniority that way, though)
212. CalGal - 2/25/2000 5:52:35 PM
Christin,
I am a tenant in good standing with a nice pair and my landlord says he gets to touch them or I can find another place to live.
As I said--report him to the FHB. No state I can think of gives a landlord that kind of power.
213. ChristinO - 2/25/2000 5:55:15 PM
Gaaah! KingPin! I nearly hurled during that scene. I saw this film almost back to back with Trainspotting another film with heave-inducing moments.
I have no idea what that actress's name is but I love her although she creeps me out big time. She's the suntanned lady in Something About Mary and the psycho-religious mom in Detroit Rock City.
214. CalGal - 2/25/2000 6:03:12 PM
BTW, since this is probably veering off of the legal aspect, let me try and bring it back into line:
The current situation is problematic because there are so many people who cheerfully provide sex for advancement or other advantages that directly translate to monetary gain. There is no way to know whether or not a person who doesn't report an offer is complicit (engaging in prostitution) or coerced. This makes burden of proof extremely murky, for both sides--especially since there are relatively few cases that are as clearcut as "Fuck me or I'll fire you."
So why not provide a way to distinguish between those who are complicit and those who are coerced?
Example: If Person A has decision making authority over any aspect of Person B's life (employment, education, residence, financial), then any direct offer to use that authority in exchange for sex is a crime/misdemeanor. Likewise, if anyone accepts such an offer without reporting it and also benefits from the transaction, they can be charged with prostitution.
This gives Person B a clear means of defense that doesn't involve having sex with the person: they can report it to the cops, right away. They will have to document the date, time, the words used, and preferably it should be reported within given time limit. Once the report is made, it will become extremely difficult for Person A to abuse his or her decision making authority to Person B's detriment. The report shouldn't be taken at face value, but investigated. If there is insufficient evidence to charge Person A, then it will still make it difficult for Person A to act out, if the report exists. And if Person B is just being malicious, that, too, will probably come out.
215. CalGal - 2/25/2000 6:03:45 PM
If Person B doesn't make a report of the offer, and instead has sex with Person A, then he or she is assumed to have willingly entered the agreement. In this case, if their activity is discovered, both A & B are charged--one with solicitation, the other with prostitution. If it is discovered and Person B has not clearly benefited, then only Person A is charged.
This would obviously create an entirely different set of problems--as would any new law. I'm just using it as an example, to demonstrate a way of handling these situations that does hold the "victim" responsible for their actions. Provide a clear course of action to anyone who receives an unwanted offer of sex from someone who has decision making power over them.
216. ChristinO - 2/25/2000 6:04:07 PM
So I should live in the street until the FHB takes action? I've never known a government agency that works all that fast.
The issue here is that there are means of force and coersion that don't require someone holding a gun to your head. What it seems to me that you are saying is that if you cave for any other reason than immediate and serious bodily harm then you're a sucker and you deserve what you get.
Do you apply this equally to all scenarios or only to women being propositioned for sex?
217. CalGal - 2/25/2000 6:16:11 PM
So I should live in the street until the FHB takes action? I've never known a government agency that works all that fast.
Christin, all you'd have to do is tell the landlord that you'll report him to the FHB, and you're halfway there. That doesn't work, find a lawyer, quick--and there are plenty of places to report abuses like this.
Generally, you can't be evicted in three days without cause (and there are required bulletins posted on this in every rental office I've ever seen). And if there's cause, then that is the problem, not the landlord. Your landlord has just complicated things by giving you an option other than the one you should be subject to--and that is where I submit that it becomes prostitution, or close to it.
Again, it is not that the landlord gets a walk.
What it seems to me that you are saying is that if you cave for any other reason than immediate and serious bodily harm then you're a sucker and you deserve what you get.
In most cases, yes. I don't know that I'd call them a sucker, but I would say that they have confused the matter considerably and have accepted something of value for sex--keeping in mind, again, that immediate terminations or evictions are not generally at issue. There has to be cause in most cases, and that is precisely what makes the matter so murky.
As I just mentioned, I do think that there needs to be a clear course of action for those who feel they are being coerced into sex. For one thing, I think it would cut down a great deal on the offers. For another, it creates a clear line between those who then have sex and accept the benefit and those who don't.
But if you had a lousy performance review, and you put out for your manager in order to keep from getting fired, why should that be substantially different from taking the termination and then accepting $2000 bucks for giving the guy a blowjob?
218. ChristiPeters - 2/25/2000 6:19:21 PM
CG - How would your law deal with Person B neither reports nor complies?
219. CalGal - 2/25/2000 6:33:10 PM
Christi,
I don't think it's against the law to fail to report a crime, is it? For example, I might do that as a consultant if my site manager came on to me. Say no thanks, and leave the contract as soon as my time is up--it's not to my advantage to report it.
But if Person B didn't report it and then later complained, that would be on Person B.
It would be nice, however, if there were a way for Person B to report it, document that it happened--but say, "Look, I've turned it down and I'm hoping nothing will come of it." Then if later, Person B was actually penalized for saying no, they'd have proof.
I don't see how that could be handled from a criminal perspective, though.
But again, it isn't just in the area of sexual relationships that an employer can make undue demands. Employers can demand that their employees engage in criminal activities--and let's face it, most of us would rather not report our managers to the cops then, either. So our lives can always get seriously fucked up if we happen to have a shitty manager--unfair sexual demands is just one way. But in this one area, we tend to give far too much leeway to the victim--they can accept the advantages and then complain later. (this is not to imply that most of them do, but it gets very murky). And it is for precisely this reason that the victim is so often looked at askance--because their silence can reasonably be construed as complicit (regardless of what the law says). This means, of course, that the victims are less likely to report because they don't like being doubted and they might not be believed--completing the cycle.
If you give the victim a reasonable means of identifying the behavior and an understandable consequence if they don't, then you have handed a lot more power to them--as well as a hell of a lot less opportunity for Person A to get away with his behavior.
220. ChristiPeters - 2/25/2000 6:40:00 PM
CG -
I think in some instances it is against the law to fail to report a crime (child abuse comes to mind) but I wasn't thinking in that direction.
Far from thinking there are all kinds of irresponsible women out there giving sexual favors to keep their jobs or get a promotion who then whine about it (not that this doesn't happen), my focus is on the asshole managers, etc who get away with this over and over and over and just keep on advancing and making more money leaving some wrecks behind. (some women go through this and are "I got what I wanted", some women shrug it off, some women are devastated)
I want to fry them.
I want some way to fry them even if the victim doesn't want to report it.
I realize this is unrealistic, but I feel that way anyway.
Well, I'm outta here. It's been interesting. Maybe I'll come back later tonight.
221. ChristinO - 2/25/2000 6:56:53 PM
have accepted something of value for sex
Nothing has been accepted. Nothing has been offered. The threat is to take something. If I am not robbed it doesn't mean what I own is a gift to me.
As I just mentioned, I do think that there needs to be a clear course of action for those who feel they are being coerced into sex. For one thing, I think it would cut down a great deal on the offers. For another, it creates a clear line between those who then have sex and accept the benefit and those who don't.
So then the law applies to you only if you believe it can protect you otherwise you're screwed. "Sorry ma'am but because you're not liberated enough to stand up for your rights we're running you in on prostitution charges. Your landlord only did something wrong if you didn't let him do it to you."
But if you had a lousy performance review, and you put out for your manager in order to keep from getting fired, why should that be substantially different from taking the termination and then accepting $2000 bucks for giving the guy a blowjob?
Why do you insist on discussing two separate issues as if they are the same thing? If you are a lousy employee you deserve to lose your job. If you are a good employee you deserve to keep your job. Sex has no place in the legitimate employer/employee relationship. Offering sex is sleazy but demanding sex is a crime.
I don't think it's against the law to fail to report a crime, is it?
It depends on the crime. If it's murder or involves a crime against a child there certainly are penalties. I have no idea what other crimes require witnesses to come forward but there may be some.
222. ChristinO - 2/25/2000 7:04:24 PM
"So why not provide a way to distinguish between those who are complicit and those who are coerced?"
By saying those who report immediately and do not submit are being coerced and those who submit or do not report immediately are complicit? This would require that every claim of harassment be treated immediately and publicly as a true claim until disproven otherwise what you are doing is penalizing the victims. Unfortunately this provides for penalizing those standing falsely accused. Additionally we need to immediately inform the populace that a person who accuses is not to be penalized for having stood up for him/herself and anyone accused is not to be penalized until proven guilty.
Which all brings me back to my original question: how effective is it to attempt to change the social consciousness by passing a law?
223. arkymalarky - 2/25/2000 8:08:09 PM
Man, this thread has taken off! Great lurking material.
My school is thinking of adopting random drug testing as a requirement for participating in any extracurricular activity. I'm interested in the status of that sort of thing legally.
224. MsIvoryTower - 2/26/2000 1:56:48 PM
Well, this has been an interesting take off on the problem of what constitutes "force or coercion". I think it captures the ambivalence in the law (across various states) nicely.
The problem is precisely how far we want to go (we meaning as a society generally, and as citizens of each state), in defining what a "threat" or "force" might be. The landlord "threatening" to throw the tenent out if sexual favors aren't given is smack dab in the gray area. Is it rape or is it some other form of harrassment?
My understanding is that there is no clear resolution of where the line is drawn. Some states have firmly come down on the side of Calgal's position, if it isn't some form of physical force or coercion, then it isn't rape. Other states have focused on the issue of consent, is it "freely given agreement", and what that actually means.
Then there are states that are completely undecided, and the language of their statutes is deliberately vague and open to interpretation, perhaps hoping to throw the problem of what is or is not rape in these sorts of cases to the courts and juries to decide.
I'm still interested in what level of culpability people think should attach to various crimes, however, and whether there is any justification for strict liability when the crime results in imprisonment.
As I said earlier, outside of statutory rape when the victim is 12 or under, I think there should always be some level of culpability required, even when the public welfare is involved.
225. MsIvoryTower - 2/26/2000 2:03:17 PM
arky
I'm not up to random drug testing yet in criminal law, so I have very little to say. I suspect this is a due process issue, however, and more related to constitutional protections. While I had a semester of constitutional law, I consider it basically useless in answering this sort of question since we didn't deal with any of the Bill of Rights.
Sigh.
226. MsIvoryTower - 2/26/2000 2:20:16 PM
Btw, Arky
My feeling is that schools shouldn't be allowed to impose a random drug testing requirement for participation in any outside activities, that it violates 4th amendment protections, but I'm without any solid legal basis for such a position.
I suspect the school wants to capture some element its not being forthright about, like the football or basketball teams, but would certainly not be able to selectively test only those groups without some due process violation.
Were I a parent in your school, I'd oppose it.
227. MsIvoryTower - 2/26/2000 2:36:35 PM
Jaysus
Those last two posts are a bit ditzy.....
I suppose I could delete them, since in now have
T h e P o w e r
but I've grown used to letting them stand as they are....
228. CalGal - 2/26/2000 2:52:51 PM
Ms,
Could you restate the whole "culpability" debate? I didn't understand it the first time from the conversation between you and TJ. Probably something simple I missed.
229. MsIvoryTower - 2/26/2000 4:40:26 PM
Calgal
I'm not sure we actually went into any depth on the issue of culpability levels. I eluded to the debate in my second post for the thread. However, I think it needs some expanding.
Culpability is simply the level of mental guilt someone has when committing a crime. There are four levels identified: intent, knowledge, recklessness and negligence.
Intent is simply intending to do the harm caused
Knowledge is knowing the result is most likely, even if one doesn't intend it, and disregarding the outcome.
Recklessness is knowing there's a high risk of the outcome but ignoring the risk and going ahead anyway.
Negligence is being too dumb to know, but that you should have known.
(and no, the texts don't actually say dumb, but that's the implication).
With respect to statutory rape, there is no level of culpability attached. You rape a child, you get punished. Thus, you didn't have to have knowledge of her/his age, or suspect it, or even have negligence with regard to their age. You break the law, you get punished. That's strict liability. It goes against the old notion that one should have a guilty mind before one can be held responsible for committing a crime. (guilty mind, guilty acts).
While statutory rape is almost easy to rationalize a strict liability standard, there are many other crimes that carry strict liability as well. Most often they're in the area of public welfare statutes, but some are also in the area of family law as well.
For instance, is a statute that makes it illegal for a man under a protective order to carry a weapon valid if it doesn't require any "intent" to break the law (like if he was never told about the law, and didn't have any chance to reasonably be put on notice about it)?
230. Absensia - 2/26/2000 5:42:42 PM
arkymalarky, re your post 223:
There is a 1995 US Supreme Court case, Vernonia School
District v. ActonSupp, where the court upheld randon drug testing for students involved in interscholastic athletics. From the language of the case, it would seem the court would have no problem extending it to other interscholastic athletics.
If found a quick summary of the case in findlaw.com and quote in the next post it:
231. Absensia - 2/26/2000 5:44:38 PM
"Emphasizing the ''special needs'' of the public school context, reflected in the ''custodial and tutelary'' power that schools exercise over students, and also noting schoolchildren's diminished expectation of privacy, the Court in Vernonia School District v. Acton upheld a school district's policy authorizing random urinalysis
drug testing of students who participate in interscholastic athletics. The Court redefined the term ''compelling'' governmental interest. The phrase does not describe a ''fixed, minimum quantum of governmental concern,'' the Court explained, but rather ''describes an interest which appears important enough to justify the particular search at hand.'' Applying this standard, the Court concluded that ''deterring
drug use by our Nation's schoolchildren is at least as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs . .. or deterring drug use by engineers and trainmen.'' On the other hand, the interference with
privacy interests was not great, the Court decided, since schoolchildren are routinely required to submit to various physical examinations and vaccinations. Moreover, ''[l]egitimate privacy expectations are even less [for] student athletes, since they
normally suit up, shower, and dress in locker rooms that afford no privacy, and since they voluntarily subject themselves to physical exams and other regulations above and beyond those imposed on non-athletes. The Court ''caution[ed] against the assumption that suspicionless drug testing will readily pass muster in other contexts,'' identifying as ''the most significant element'' in Vernonia the fact that the policy was implemented under the government's responsibilities as guardian and tutor of
schoolchildren. "
School drug testing
232. Absensia - 2/26/2000 5:46:03 PM
I don't agree with the decison or the reasoning, but as always, they didn't ask me. I also just realized this may be a waste of space, since I don't know if you are in the U.S. I do think the court's reasoning is worthy of comment..or perhaps I mean lack of reasoning.
233. MsIvoryTower - 2/26/2000 6:01:49 PM
See? I told you I knew next to nothing about this area of the law....not even a due process issue, but a right to privacy issue.
FWIW, I strongly disagree with that decision.
234. Absensia - 2/26/2000 6:12:18 PM
I strongly disagree too! Considering the make up of the court, it's not surprising, though.
235. cigarlaw - 2/26/2000 9:51:20 PM
under the law infabts==yjose umder 18 have a lessened expectation of privacy and when in school the school -- in most instances--operate as a parent. besides, the kid doesn;y have to test--just don't participate in non-mandatory school activities.
236. cigarlaw - 2/26/2000 9:51:22 PM
under the law infabts==yjose umder 18 have a lessened expectation of privacy and when in school the school -- in most instances--operate as a parent. besides, the kid doesn;y have to test--just don't participate in non-mandatory school activities.
237. Absensia - 2/26/2000 10:03:01 PM
Cigarlaw,
Naw.."suiting up in a locker room" isn't the same as drug testing.
Physical exams for athletes are to make sure they are healthy enough for the sport and docs don't do drug tests for them. Shouldn't need to have a physical to participate in debate team, or the newspaper, etc., and why should a student have to choose between random drug testing and school activites when there is no probable cause? Missing
out on those activities is more than a small thing. Many colleges look at whether an applicant has been involved in such activities when deciding who to admit.
Sure more and more companies demand drug testing even to apply for a job. Boeing does...and not just for people who build their planes or are test pilots.
238. joezan - 2/26/2000 11:00:58 PM
What a sensible decision. I know very little of the law, but it has always been my argument that students participating in extra-curricular sports voluntarily submit to such a high degree of privacy invasion that the argument against drug testing on those grounds is specious.
239. Absensia - 2/26/2000 11:04:42 PM
Joezan:
And what about non-athletic actives?
240. Angel-Five - 2/26/2000 11:12:32 PM
The decision is nonsensical. High school athletes have to take physicals because of school liability. However, the schools are not liable for drug use among student athletes. Schools have the right to conduct locker searches based upon suspicion that a student is involved in something illegal -- but they don't have the right to invade privacy based upon nothing at all. In loco parentis has been abridged and weakened by a lot of recent rulings simply because we realize that it's not in everyone's best interest for the schools to have the power over children that parents do. The ability to randomly invade privacy for any reason whatsoever is one of those things which make it plain that in loco parentis is best kept on a very short leash.
241. joezan - 2/26/2000 11:14:42 PM
Abs:
That's a little more dicey, of course. But for non-athletes I don't think it's justifiable. I wouldn't deny the school the right, with just cause, to require testing of non-athletes though.
242. Absensia - 2/26/2000 11:16:21 PM
Joe
I think Angel's right. And, I don't see any compelling reason for drug testing on a random basis.
243. joezan - 2/26/2000 11:16:51 PM
A-5:
Athletes are required to take physicals for their own protection. You may read that as a liability concern, but long before liability was such a priority, athletes were required to have physicals.
244. Absensia - 2/26/2000 11:20:59 PM
But, Joezan, when they get those physicals, the docs don't test for drugs. Ones I talked to make a point not to..most school required exams are pretty cursory, from what I've seen and been told.
245. Angel-Five - 2/26/2000 11:24:36 PM
Many Americans choose not to engage in activities which require them not to be submitted to involuntary invasions of their privacy, not because they have something to hide, but because they value their privacy in principle and don't want to tacitly support policies which violate their right to that privacy. This is a legitimate right of any American based in the Bill of Rights.
The decision to allow schools to randomly test athletes for drug use is one which discriminates against people who choose to exercise that right. Arguing that students can't complain because they voluntarily choose to have sports physicals is specious -- it's precisely like arguing that because a police officer has the right to demand your driver's license and you tacitly support that because you choose to drive an automobile, you can't complain if the police officer demands that you submit to a strip search, or a blood test, without any probable cause to do either.
And why shouldn't they? After all, if the cops strip-searched and blood-tested everyone they pulled over, they'd probably find a lot of illegal firearms and drugs as a result. But we don't let them do that because there's no probable cause and the invasion of innocent citizen's privacy outweighs the additional chances to arrest criminals. The exact same principle is at work when we're looking at randomly drug testing student athletes.
246. joezan - 2/26/2000 11:27:52 PM
Abs:
I don't see your point.
247. arkymalarky - 2/26/2000 11:34:03 PM
Thanks everybody, and thanks Absensia for the great info and link.
I'm really beginning to have a problem with the guilty-until-proven-innocent mentality that is becoming so prevalent. The more widespread it becomes the more chance for misuse and abuse, imo. I agree with Msit about the 4th Amendment, and I'm beginning to wonder whether there should have been a clearer "right to privacy" clause in the Constitution. The other freedoms don't mean a lot without the assumption that your business is not automatically any and everybody else's business.
What bugs me about the random testing for students is that 1) it's generally known who has a problem and who doesn't, and many of them don't participate in e-c activities anyway, and 2) they're the ones who most need school involvement in the first place, and such a policy would only make it less likely for the school to have any positive influence on them, in addition to making those who aren't guilty feel like they're suspects.
It hasn't been adopted yet, and is still in the discussion stages.
248. Angel-Five - 2/26/2000 11:34:07 PM
Joezan: So? That's what it is now. But even if it was, the rationale for having compulsory physicals is to determine whether a student's participation in a sport puts their lives or health at risk. Testing for drug use has nothing to do with that, because any adverse affect it has on the body that can possibly be used as a justification for denying a drug-using student the chance to play sports will turn up in the physical. Cut and dried, that is it.
What you're talking about is invading their privacy for a wholly different reason -- your own interest in controlling their behavior. But that doesn't work.
I mean, why not force student athletes to take a lie detector test to see whether or not they've committed violent felonies as well, or make them be fingerprinted and compare those prints to the ones found at the scene of unsolved crimes ? After all, you know, they've already submitted to an invasion of their privacy for their own good and for the legal protection of the school. Why not make them also submit to an invasion of their privacy that has no similar justification? Just for kicks?
No, it won't wash.
249. joezan - 2/26/2000 11:34:45 PM
A-5:
No -it's not the exact same principle. First off, extra-curricular sports involvement is voluntary. But the biggest difference is, the kid is not criminally liable if he is found to have illegal drugs in his system - he simply forfeits his privilege of participating in e-c sports.
250. Absensia - 2/26/2000 11:35:24 PM
My point is that those physicals aren't particularly invasive, and have at least a small justification to be done...so claiming that some how a student's right of privacy has been lessened because of such a physical exam, doesn't follow..at least not to me.
251. Angel-Five - 2/26/2000 11:36:28 PM
Arky:
re: your next to last paragraph:
Exactly. That is dead on target.
252. IrvingSnodgrass - 2/26/2000 11:39:30 PM
Joe:
he simply forfeits his privilege of participating in e-c sports.
Arky's message made me aware that perhaps participating in sports is the best thing possible for a kid with a problem. Is it better to isolate these kids?
253. Absensia - 2/26/2000 11:39:42 PM
Arky,
I hope that's where it stays..in the discussion area. Yes, you can usually tell who's got the problem, though I speak from involvement in swimming..no other sports.
I think the issue is one of privacy. I don't think a more precise 4th amendment would ever be accepted. And no doubt this supreme court could still find drug testing okay...oh for the days of Earl Warren and Douglas!
254. joezan - 2/26/2000 11:41:35 PM
Abs:
I used to "drop" my probationers all the time. It is nowhere near as intrusive a procedure as a Dr. grabbing the testes and saying cough. As a matter of fact, one need not even see any private parts in order to have a good drop.
255. Absensia - 2/26/2000 11:42:56 PM
And, I don't think it's just sports' participation that the court singles out, even though that was the issue..their justification..locker searches, et al, seems to leave the door open for other school activities..."Bill outsted from Science Club...illegal drug found in his system."
256. Angel-Five - 2/26/2000 11:44:40 PM
No -it's not the exact same principle. First off,
extra-curricular sports involvement is voluntary.
(cough) So is driving a car, Joezan, last I checked.
But the
biggest difference is, the kid is not criminally liable if he
is found to have illegal drugs in his system - he simply
forfeits his privilege of participating in e-c sports.
Oh, yah, it's a privilege. That's why people can successfully sue to be let onto a sports team, like women in men's wrestling. It's not that simple.
And even if that were the case, you're still talking about denying the at-risk student one of the biggest assets we've ever found that they can use to help stay drug free -- sports. Midnight basketball, ever hear of that? Haven't you ever heard the professional athletes who speak out against drug abuse talk about how one of the things that let them stay straight was being in a sport? You are going to take the child on the borderline and cut them off from what may be for them the only readily available support group they have. So what are they going to do then if they get denied the ability to play sports for their school? Love the system that did it and go home and take up the frickin' flute?
No, they're going to have a lot of people around, the people who give them the drugs in the first plave, there to tell them 'see, the school doesn't give a fuck about you, man. They're just trying to fuck with your freedoms'. And at the age where they're most susceptible to peer pressure you are at one stroke going to ensure that most of the peer pressure they feel is going to be negative.
257. joezan - 2/26/2000 11:45:48 PM
Irv:
Sometimes. One thing I know, though - and you may ask just about any HS coach - is that, for the most part, these kids tend to be a disruptive influence on the whole team.
258. Absensia - 2/26/2000 11:46:50 PM
Joezan:
"I used to "drop" my probationers all the time."
Not sure what you mean by "drop." As far as probationers, "you do the crime, you do the conditions of probation." Don't necessarily agree
with that, but it's more understandible.
I prob. don't appreciate that kind of physically..I'm teste-less, and docs don't get that upclose and person for female sports' exams, at least none of mine ever did, thank god.
259. joezan - 2/26/2000 11:51:04 PM
A-5:
Stop your damn twitching, man. Geez, are you capable of having a controlled discussion?
(cough) So is driving a car, Joezan, last I checked.
Nice try. You may not drive (or you at least suffer severe restrictions on your driving) after you have been arrested for DUI, may you?
260. arkymalarky - 2/26/2000 11:52:06 PM
But you can drive after you've been arrested for marijuana.
261. joezan - 2/26/2000 11:53:26 PM
Abs:
"Drop", as in "urine drop", as in peeing in a bottle.
262. joezan - 2/26/2000 11:54:58 PM
Arky:
Not if you're charged with driving under the influence, you can't.
263. Angel-Five - 2/26/2000 11:57:30 PM
Oh, now, don't get worked up, Zan.
I'm totally at a loss to determine how your DUI example bears on anything. Explain.
264. IrvingSnodgrass - 2/26/2000 11:57:48 PM
Joe:
Speaking as someone who has coached youth sports for many years, the problem kids are the coaches' challenge. I've always been pretty good at drawing out the disruptive kids and making them a part of the team. One year, the league gave me all the problem kids since I was so good with them. What a nightmare, but it worked out ok.
I would hate to see a player who has problems lose the opportunity to overcome those problems through a good sports program. Sure, you won't have 100% success, but even 20% success sure beats cutting all the kids off. They need help, not isolation.
265. Absensia - 2/26/2000 11:58:20 PM
Joezan, thanks for the clarification...I do know I don't want to be the one who holds the bottle.
In this state you can continue to drive until you go to court and are found guilty or plead. An arrest doesn't change anything.
266. arkymalarky - 2/26/2000 11:58:46 PM
I didn't say that. I said for smoking marijuana at all. IOW, your right to drive is not taken away simply for smoking, but only if you're under the influence while behind the wheel.
267. arkymalarky - 2/26/2000 11:59:49 PM
Oops. 266 was to Joe.
268. Absensia - 2/27/2000 12:07:51 AM
Sorry to be dense, but what does IOW mean?
269. joezan - 2/27/2000 12:08:52 AM
Irv:
Most of the coaches I've met who've been "very good" with these types of kids were actually very good at enabling them - particularly when they are good athletes. No reflection on you, I'm sure.
It's a purely personal belief of mine that if a kid wants to do any extra-curricular stuff, he'd damn well better have all his ducks in a row. Or at least most of them.
It was a HS coach, in fact, who once brought it home to me in a very real way: He asked me What the fuck do the kids who work their asses off to be the best they can be - who study and practice hard, get along with everyone, obey their parents, don't wise off to their teachers - what do they get to distinguish them as damn fine people? They get shit! It's when a kid is a total screw-up that everyone comes to his rescue and makes a big deal of him.
And that is exactly how most kids see it, Irv.
Let the kid get his act together, and then give him some extras.
270. arkymalarky - 2/27/2000 12:11:32 AM
Not every kid who misuses drugs is a thug or a discipline problem. I've known many over the years who weren't any trouble at all. And don't forget we're not just talking about athletics, but everything from NHS to FHA.
271. arkymalarky - 2/27/2000 12:12:28 AM
IOW means in other words. I could've sworn I typed that into #270.
272. joezan - 2/27/2000 12:13:43 AM
Abs:
It is the pee-er who holds the bottle.
273. arkymalarky - 2/27/2000 12:13:48 AM
I've never known of a coach who wanted to ditch a good player for drugs, and they do exist in hs just like they do in college and pro sports.
274. Absensia - 2/27/2000 12:16:34 AM
Thanks, Ark...now it's sooo obvious..duh.
Joe, but who watches? Wouldn't want the pee-ee and the pee-or to pull a fast one..naw..I don't wanna know who watches...
275. joezan - 2/27/2000 12:16:48 AM
A-5, Arky:
But the cop is not acting in loco parentis. The school is, in effect, like the parent who finds a joint in the kids drawer, and grounds him/her from any activity outside the house except for school. Perfectly reasonable.
276. IrvingSnodgrass - 2/27/2000 12:17:11 AM
Joe:
You and I obviously see things differently. As a coach, I really don't care how a kid performs on the field. I am interested in helping him develop as a person, learning teamwork and sports skills. I have never overlooked a kid's problems, and I can't imagine a good coach doing that, so your comment about "enablers" just doesn't fit.
I understand you prefer to leave kids alone to work out their problems. I personally feel that adult guidance and examples are very important to a developing young person, and that excluding those with problems from the very activities that will help them is dooming these kids to sink deeper into their problems.
I hope my children never have a coach like the one who made the statement you quoted. It's frightening.
277. Angel-Five - 2/27/2000 12:19:14 AM
If most kids could just get their act together there'd be little interest in initiatives like this in the first place, Zanni. You're just proposing to cut them off from one of the best means they have of 'pulling themselves up by their own bootstraps'. If the aim of the program is ostensibly to keep kids off drugs then it's obviously self-defeating. Although it does give some people the vicarious thrill of punishing other people.
So let me get this straight.
The program a) invades the privacy of children without just cause, b) unfairly discriminates against other responsible children who believe in standing up for the Bill of Rights,
c)isolates at-risk children from one of the best means around to support them,
d)doesn't even target the majority of at-risk children, just the ones who might be minded to seek support in the first place,
e)offers no means of determining as a result whether or not it's even successful at keeping kids off drugs
f)rather instead clearly seems to work at cross purposes as far as that goal is concerned.
Gee. Where's the downside?
Why don't we just hand out crack pipes instead?
278. arkymalarky - 2/27/2000 12:19:50 AM
"But the cop is not acting in loco parentis. The school is, in effect, like the parent who finds a joint in the kids drawer, and grounds him/her from any activity outside the house except for school. Perfectly reasonable."
Sure, when they have reasonable cause to investigate a problem.
279. joezan - 2/27/2000 12:20:09 AM
Abs:
Ok, wise guy. Now I gotta explain so's people don't think I'm a pervert.
With his back to you, the pee-er does his deed in the cup. You merely stand there behind him (or, in your case, her) and make sure he/she isn't merely scooping water outta da terlet.
Cappiche?
280. IrvingSnodgrass - 2/27/2000 12:22:35 AM
Joe:
The school is, in effect, like the parent who finds a joint in the kids drawer, and grounds him/her from any activity outside the house except for school. Perfectly reasonable.
That doesn't sound like a reasonable response to me. But it sheds light on where you're coming from. I feel kids need guidance and help, not punishment. If one of my kids had a joint, I certainly wouldn't keep him/her from organized adult-supervised activities.
281. Absensia - 2/27/2000 12:26:10 AM
Oh thanks, Janz..but you gotta watch don't you..the person could be smuggling in someone else's sample..hey..I've read about that..no first hand experience though!!!!
282. Angel-Five - 2/27/2000 12:28:35 AM
But the cop is not acting in loco parentis. The school is,
in effect, like the parent who finds a joint in the kids
drawer, and grounds him/her from any activity outside
the house except for school. Perfectly reasonable.
Joezan, this isn't hard.
The cops do not randomly stop and search automobiles for drugs. What you are proposing is the equivalent of that. Perhaps you'd LIKE the cops to do that, but it's unconstitutional for them to do that.
The proper analogy is this:
cop pulling over a drunk driver and citing them for DUI: student being observed getting high by school authorities and being cut from the team as a result.
I don't have a problem with that. No one's privacy is violated; no one is discriminated against simply because they stand up for their constitutional rights; the punishment is correctly applied. What I do have a problem with is :
cops randomly stopping and testing drivers without probable cause: schools randomly invading the privacy of their students without probable cause.
And I think it's the same problem most other people have as well.
The in loco parentis statement you just used is fallacious, because even the bozos who came up with this notion clearly recognize that the school doesn't have the in loco parentis power to force a drug test. Otherwise, they wouldn't have to look for specious conditions (such as athletes already submitting to physicals) in order to justify it in the first place, they'd just be testing all students at random.
283. Absensia - 2/27/2000 12:28:44 AM
284. joezan - 2/27/2000 12:30:37 AM 285. arkymalarky - 2/27/2000 12:33:04 AM The proper analogy is this: 286. Angel-Five - 2/27/2000 12:33:35 AM Clarification: The reason I wouldn't have a problem with a student getting cut from the team is not necessarily a universal one: but most schools I know of require their student athletes to sign a code of ethics statement which prohibits them from drinking, using tobacco, doing drugs, etc. I'd rather that those students who get caught be allowed to stay in the program, or at least get hooked up with some other support system, but they also ought to take such things seriously if they sign them. 287. arkymalarky - 2/27/2000 12:34:07 AM Hmm. It seems to have something to do with Absensia's post. I wonder what caused that. 288. Angel-Five - 2/27/2000 12:34:32 AM Whoopsie. 289. Absensia - 2/27/2000 12:35:09 AM I don't think it should be allowed at all, based on 4th amendment reasons. But on a practical note, I don't think schools are going to pay for the really high tech drug tests, so wouldn't kids be dropped for taking over the counter cold medicine, eating a poppy seed muffin, etc.? Then they get branded as a druggie..unless their parents have the $$ to pay for a bigger test. And that kind of stuff would no doubt show up if they applied for college and the school sends in the "recommendations." It's scary to me..and makes me mad. 290. Absensia - 2/27/2000 12:37:04 AM oops..I put a comment in between < and > forgot about html. My apologies. 291. Angel-Five - 2/27/2000 12:37:06 AM Looks like he accidentally made a tag that caused the page's code to malfunction. It's happened before and shouldn't be a problem now. 292. joezan - 2/27/2000 12:42:55 AM 293. ee - 2/27/2000 12:45:06 AM A-5; The cops do not randomly stop and search automobiles for drugs. 294. joezan - 2/27/2000 12:46:02 AM 295. Absensia - 2/27/2000 12:52:01 AM Didn't know that, Joezan. But what about the cold meds..etc. and I wonder if school districts pay for the difference. 296. Angel-Five - 2/27/2000 12:54:01 AM This isn't hard. Participation in school sports is not Of course it isn't hard, Zanni. We've both been saying that all along and I don't know why you bring it up now as if to clarify something. One of the things we do seem to be at odds about is that I think it's absolutely unfair to deny someone who wants to participate in sports and who can pass a physical and meet the requisites of the code of ethics the chance to do that, just because they're forced to choose between a) standing up for their right to privacy or b) their desire to play sports. You don't seem to share that opinion. EE: Well, it's pretty damned clear that 'sobriety checkpoints' are a violation of the Bill of Rights. So are 'drug courier profiles' too, and the cops exercise those simply because no one has forced them not to yet. I got searched at an airport once for no reason other than I fit some frickin' profile (hell, I wasn't even going on the plane, I was just there to see someone off.) It pissed me off pretty badly. 297. Angel-Five - 2/27/2000 12:54:10 AM This isn't hard. Participation in school sports is not Of course it isn't hard, Zanni. We've both been saying that all along and I don't know why you bring it up now as if to clarify something. One of the things we do seem to be at odds about is that I think it's absolutely unfair to deny someone who wants to participate in sports and who can pass a physical and meet the requisites of the code of ethics the chance to do that, just because they're forced to choose between a) standing up for their right to privacy or b) their desire to play sports. You don't seem to share that opinion. EE: Well, it's pretty damned clear that 'sobriety checkpoints' are a violation of the Bill of Rights. So are 'drug courier profiles' too, and the cops exercise those simply because no one has forced them not to yet. I got searched at an airport once for no reason other than I fit some frickin' profile (hell, I wasn't even going on the plane, I was just there to see someone off.) It pissed me off pretty badly. 298. IrvingSnodgrass - 2/27/2000 12:55:39 AM Joe: 299. Angel-Five - 2/27/2000 12:55:41 AM Poppy seeds don't cause you to test positive for THC, so I'd say that anyone charging you 3 bucks a pop to distinguish that is ripping you off, Joezan. Poppy seeds cause you to test positive for opium-based narcotics. 300. joezan - 2/27/2000 12:57:39 AM 301. joezan - 2/27/2000 1:01:11 AM Irv: 302. Angel-Five - 2/27/2000 1:02:09 AM 303. ee - 2/27/2000 1:05:11 AM I think an even more insideous thing is the practice of financing the police through seizure and sale of property. 304. joezan - 2/27/2000 1:11:17 AM 305. IrvingSnodgrass - 2/27/2000 1:11:45 AM Joe: 306. joezan - 2/27/2000 1:17:28 AM 307. joezan - 2/27/2000 1:24:50 AM 308. Absensia - 2/27/2000 1:28:51 AM Joezan, 309. Angel-Five - 2/27/2000 1:29:50 AM Joezan: Yes, that's the one. The legal justification for a work contract is entirely and always has been one of liability. As mentioned, that's not applicable here, and that's just one reason. Here's how it works: The institution demanding the tests has to pay for someone to collect, handle, and transport the samples to the analyzing lab. The samples are considered biohazards. That isn't really cheap, to begin with. Next, the labs have to test each sample several times for the presence of different drugs and their metabolites. It's not just one test. If a test comes up positive, they have to redo everything to make sure that the positive test isn't a result of contamination or bad procedure during the testing process. The protocol usually calls for much more exacting tests which are more expensive, in order to limit the liability of the lab to lawsuits resulting from their findings. They charge the institution in all cases for testing, handling, and disposal of the biohazard. If that doublecheck comes up positive, they inform the institution. 310. Angel-Five - 2/27/2000 1:30:08 AM The person who has tested positive then has the right to demand a brand new test on the grounds that their sample may have been tampered with, accidentally switched with another, or just that their test wasn't accurate (and some false positives happen in any tests, even the expensive ones that no one uses for wide-screening tests. I've worked at three places which required drug tests and they all paid out the nose for them. The last place got charged $40 a pop for the basic tests. Now, there's a football team, at least one volleyball team, two basketball teams, two track teams, a cross country team, a golf team, a wrestling team, a baseball team, and a softball team at your average school. Some schools add swimming, tennis, and whatever else I can't think of right now. You do the math. Bearing in mind that the schools with the biggest drug problems are going to usually be the ones who can least afford the new expense, let alone paying for accurate tests. 311. Angel-Five - 2/27/2000 1:35:45 AM Let me make this simple. When any screw-up can get IOW, (that's in other words for Absensia) yes, yes you do support invading the privacy of students without just cause and discriminating against those students who believe in standing up for their constitutional rights, just so that sports can be prestigious again. That last sentence I quoted is a red herring. No, Joezan, it isn't expecting too much to ask that they try and do that. But clearly there are acceptable means for asking and following up on that. If the justification for randomly drug-testing students is simply that it isn't too much to ask that they stay off drugs, then I might just as well advocate sending drug dogs and men with guns to their houses to check their rooms. That's not acceptable, though -- it's excessive. So is invading their privacy and discriminating against the ones who recognize that invasion as unethical and unconstitutional. 312. IrvingSnodgrass - 2/27/2000 1:40:24 AM Joe: 313. joezan - 2/27/2000 1:46:54 AM 314. joezan - 2/27/2000 2:03:23 AM 315. IrvingSnodgrass - 2/27/2000 2:07:48 AM Joe: 316. IrvingSnodgrass - 2/27/2000 2:11:23 AM Joe: 317. Angel-Five - 2/27/2000 2:36:13 AM I'd like to point out that if anecdotal evidence is going to have any weight in this discussion, I know plenty of students who don't subscribe to this 'it isn't fair, the troublemakers get all the help and the good kids get squat' notion. In fact, most of the kids I've worked with that have voiced a concern say that more or less they're upset that problem students don't get enough help and that school-based anti-drug 'get tough' rules are just a part of the problem. 318. joezan - 2/27/2000 2:36:36 AM 319. Angel-Five - 2/27/2000 2:38:10 AM Yeah, Joe -- you never did Windowpane or smoked a joint? Hm? Or are you confessing that you never learned to play by the rules? It's got to be one or the other. 320. Angel-Five - 2/27/2000 2:38:37 AM sorry, crosspost. 321. IrvingSnodgrass - 2/27/2000 2:40:28 AM Joe: 322. Angel-Five - 2/27/2000 2:40:42 AM So if you're an inner-city kid right now, Joe, and you hit the bong every once in a while, and you show up to try out for varsity ball and the coach says 'Joezan, get the hell off my field' -- where are you going to go? 323. joezan - 2/27/2000 3:04:13 AM 324. joezan - 2/27/2000 3:07:42 AM 325. Absensia - 2/27/2000 3:10:16 AM And how do you define "drug user"? Some one who smoked a part of a joint a few days before the random test? Or someone who was just in the same room where kids were smoking? Yeah..like that Canadian athlete..did snow boarding or stunt skiing, I forget. He tested positive only because he was in the same room with smokers..tsk tsk..he shouldn't have inhaled. Must confess, I rolled my eyes at that reason. 326. joezan - 2/27/2000 3:14:47 AM 327. Absensia - 2/27/2000 3:16:32 AM Joez, 328. IrvingSnodgrass - 2/27/2000 4:36:51 AM Joe: 329. Angel-Five - 2/27/2000 5:37:28 AM I don't have much of a problem with people experimenting with grass or whatnot -- I'm pro-legalization and think it's a lot more helpful to try and understand people with abuse problems than to dismiss them as 'dopers'. Having said that, I also know that it's good for schools to dissuade students from developing a drug habit. School kids aren't always equipped with enough learning to make the right decisions about drugs (which is probably why so many people are intent on doing their thinking for them instead of trying to come up with better ways to educate them). I'm not really worried about kids experimenting a little with weed or alcohol. Most of us did, right? Some of us more than others. But the point is that there were checks on our behavior too which helped keep us from starting at a few tokes of weed at a party and ending up with a bad smack habit, and even if soft drugs are legalized I still see value in having those checks around. Most of those checks have to come from, or at least be supported in, the home, which is why I'm always so frickin' suspicious of anti-drug initiatives which don't center on the family. But some of them come from school and sports and so on, and that's why I don't have much of a problem with kids getting kicked off the team for getting high- if they actually get caught getting high. But the check becomes excessive and counterproductive if it gets elevated to the level of random drug-testing. The main effect of a code of ethics which proscribes drugs and alcohol isn't to bust someone who experiments with those substances or even to keep the majority of students from experimenting with them, but to discourage the habitual use of them. It works as a disincentive to the many, and that's precisely what it should try to do, because it can't fairly do more than that. It serves as a bulwark against excess, without being so draconian as to do more damage then they prevent. 330. Angel-Five - 2/27/2000 5:52:49 AM Please. As I said earlier, not only is the kid's drug use a Excuse me, Zanni, but I do believe you're talking out your ass. I know plenty of kids who have the occasional beer or occasionally partake at a party who not only aren't a negative influence on their team members (and schoolmates), they're positive influences. I went to school with some of them. They were good kids who helped others, did their homework, made good grades, loved their families and are now productive citizens. They just drank some and got high a little. If what they did was so bad, so awful, how come they turned out fine? It wasn't like they needed some dramatic intervention, they turned out just fine on their own, like most people who experiment with alcohol and weed or speed or whatnot. But the way you see things, the kid who got high at a party, once, a week before he got drug-tested should be penalized just as heavily as the kid who smokes crack between classes and got drug tested, and that's ridiculous and counterproductive to me. Most people have a problem with drug use because of what can happen if it turns into abuse. You seem to have a problem with drug use just because. That seems silly to me. 331. Angel-Five - 2/27/2000 7:07:25 AM I think Joezan just needs to mellow out a little. 332. Angel-Five - 2/27/2000 7:07:46 AM Let's go burn one, eh? 333. Absensia - 2/27/2000 7:47:46 AM But what if there's a random test later today? 334. Absensia - 2/27/2000 7:50:25 AM Then what??? Huh? 335. Absensia - 2/27/2000 7:52:03 AM hey, what's that in your hand? A bottle? OMG! 336. MsIvoryTower - 2/27/2000 9:23:26 AM Reading this exchange, I'm reminded that the core issue here is a matter of legal rights, and whether we think its fine to treat children the way we would not agree to be treated as adults. 337. MsIvoryTower - 2/27/2000 9:40:23 AM However, I should temper my last comment by noting there are some advantages to being seen as an infant in the eyes of the law..... 338. CalGal - 2/27/2000 10:16:52 AM I agree with JoeZan in principle, actually. I scanned this exchange, but didn't read it in depth--if someone made this point, apologies for the repetition: 339. Toenails - 2/27/2000 11:08:00 AM 340. MsIvoryTower - 2/27/2000 11:25:49 AM Well, I don't see this as contradictory for a conservative agenda, at all. Personal freedom has always been confined to the economic and political realm, not necessarily to the social realm in the conservative platforms I've seen. 341. joezan - 2/27/2000 11:26:44 AM 342. joezan - 2/27/2000 11:28:02 AM 343. MsIvoryTower - 2/27/2000 11:35:20 AM Zan, 344. MsIvoryTower - 2/27/2000 11:47:21 AM we have curfews, we don't let kids drink liquor or drive or vote till a certain age, etc. 345. MsIvoryTower - 2/27/2000 11:50:53 AM I should qualify my last comments: 346. joezan - 2/27/2000 7:14:43 PM 347. arkymalarky - 2/27/2000 8:45:05 PM Forget any of the rest of what should be done when a student is actually found to be using drugs, and I still have a big problem with treating people as guilty without reasonable suspicion. I don't use drugs, but I would highly resent being drug tested. I resented having to have my fingerprints taken and saw no point in it. A good background check shouldn't require it. I don't like elements of government and employer inspection of individuals I'm seeing in the past few years that remind me of a police state, and have the potential to be very much abused. 348. Candide - 2/27/2000 10:00:25 PM MsIvoryTower 349. SnowOwl - 2/27/2000 10:09:14 PM Candide, 350. Candide - 2/27/2000 10:36:21 PM SnowOwl 351. Candide - 2/27/2000 10:41:35 PM Here is an excerpt from a local petition that I received last week. 352. Candide - 2/27/2000 10:42:56 PM I had modified that post but it seems to have slipped back. Sorry. 353. SnowOwl - 2/27/2000 10:49:22 PM Ths is a particularly awful case, Candide, and it's been fairly well reported and discussed here. I may well be wrong, but I understand that all options weren't available in this case - that is, that the diversionary procedure which is available elsewhere in cases like this wasn't available in the area the boy lived. 354. Angel-Five - 2/27/2000 10:53:56 PM Australian rednecks. (chuckle) 355. Candide - 2/27/2000 11:00:37 PM Snowowl 356. Candide - 2/27/2000 11:02:25 PM AngelFive 357. MsIvoryTower - 2/27/2000 11:24:30 PM Candide 358. Candide - 2/27/2000 11:50:26 PM MsIvoryTower 359. SnowOwl - 2/28/2000 1:46:07 AM We believe the Mandatory Sentencing of Juvenile Offenders Bill 1999 is discriminatory, disrespectful, morally abhorrent, racist and 360. Candide - 2/28/2000 1:57:25 AM SnowOwl 361. Angel-Five - 2/28/2000 3:19:02 AM Ostrayan rednecks. Somebody better tell Jeff Foxworthy. 362. IrvingSnodgrass - 2/28/2000 5:24:09 AM Candide: 363. Toenails - 2/28/2000 10:19:37 AM 364. CalGal - 2/28/2000 11:57:43 AM The Three Strikes law did originate in California; its inception and eventual success was due in large part to the double whammy of the Polly Klaas and Kimba Reynolds murders. 365. CalGal - 2/28/2000 12:04:47 PM You know, on thinking more about it, I'm not 100% sure it originated in California--it may be that this is where it got the most attention. It may have actually began in a different western state--Washington or Oregon being the most likely candidates. But of course, until it happens in California, no one pays attention. 366. Absensia - 2/28/2000 12:13:38 PM Calgal... 367. Absensia - 2/28/2000 12:14:49 PM But, Calgal, you are partly right. No one paid much attention to Daryl Gates when he was the chief of police here. He didn't get any attention til he hit California. 368. CalGal - 2/28/2000 12:33:58 PM Okay, I did a bit of reading and I remember a lot of the debate now. Actually, Cigarlaw or Trialshark would be more up on this issue, but I'll give it a shot. 369. CalGal - 2/28/2000 12:36:47 PM Unlike the earlier laws, which were passed by the legislature, the California and Washington laws were passed by ballot initiative--I imagine that's true in the other states that have since adopted it as well. For the furriners out there, the ballot initiative has a much lower barrier to entry, and has been used to mandate any number of new laws, spending requirements, and policies that never would have made it into law through standard legistative means. 370. Candide - 2/28/2000 6:54:39 PM Toenails 371. LadyChaos - 2/29/2000 5:41:51 PM MsIT, 372. MsIvoryTower - 2/29/2000 5:46:10 PM My God, 373. MsIvoryTower - 2/29/2000 5:47:32 PM LadyC! 374. MsIvoryTower - 2/29/2000 5:49:41 PM laughing at....not on.... 375. LadyChaos - 2/29/2000 6:00:17 PM MsIT, 376. wonkers2 - 2/29/2000 7:51:31 PM DRUGS AND BOOZE AND KIDS, BIG AND SMALL. A recent survey in Michigan indicated that about half of high school kids, as I recall from memory, have used marijuana. And a surprisingly high percentage within the past month. The figures were even higher for alcohol and lower for other drugs. But just think of the result if we were able to catch and punish all of the users! The state would have to build a bigger facility for Joezan! All we need is a few more cops, and, of course random drug tests for everyone! Half of our kids would be in jail. Al Gore would have a criminal record for use of marijuana. Bush and McCain would have been jailed numerous times for drunk and disorderly. Gary Bauer would probably be the only candidate left standing. Think of it! The possibilities are limitless! Zero tolerance forever! 377. MsIvoryTower - 2/29/2000 8:59:13 PM Lady C 378. LadyChaos - 3/1/2000 11:50:33 AM MsIT, 379. MsIvoryTower - 3/2/2000 9:15:54 AM LadyC 380. Jonesy - 3/2/2000 9:45:10 AM Many states have "three strikes" type statutes, but they are discretionary as has been pointed out. A great bargaining tool for the prosecutor, and quite useful for the real bad actor. In Nebraska, it is called the habitual felon statute, known affectionately as "The Bitch". "Getting bitched" means that the judge can tack on 10-60 years to the sentence. Used by decent prosecutors, it is a good thing (this admission comes from a defense attorney!). There was an 8th amendment challenge to a similar statute in South Dakota. There some miserable lout got life under their scheme for three minor felonies, all related to bad checks and credit card fraud, where he stole less than $5k. The Supremes said that it was no problem. So much for Burger and "making the punishment fit the crime." 381. MsIvoryTower - 3/2/2000 9:50:23 AM Jonesy 382. bubbaette - 3/2/2000 9:53:39 AM I heard something on the news last night that has me confused. It seems that some states are proposing tougher penalties for crimes connected to gang actions. But the proponents of the penalties are largely the same as those who oppose the notion of tougher for hate crimes. Please resolve what appears to be in idological inconsistancy for me. 383. Jonesy - 3/2/2000 10:03:32 AM Bubba- please note the respective races of the perpetrators- 384. bubbaette - 3/2/2000 11:14:47 AM Well of course! How could I be so blind! 385. LadyChaos - 3/2/2000 12:59:41 PM MsIT, 386. DaveM - 3/2/2000 5:34:42 PM I don't have to take criminal law as a first year course - it sounds like I am lucky (g). I have a class called Democracy and Coercion, which is basically an entire course on the Bill of Rights, but it is, to say the least, uninspiring. Have you guys heard of David Cole, author of No Equal Justice? His teaching style is a bland as his writing style. 387. DaveM - 3/2/2000 6:57:50 PM MsIT: 388. cigarlaw - 3/2/2000 8:31:13 PM excerpt from rem court bar newsletter of feb,2000 389. cigarlaw - 3/2/2000 8:33:08 PM After the DNA testing was done, a writ of habeas corpus, asking for a new trial based upon this new evidence be permitted. The trial judge in the case found that if the jury had been aware of the fact that his DNA did not match the DNA found in the victim, there was probable the jury would not have found the the defendant guilty. He ordered the defendant released and ordered a new trial. The Texas Court of Appeals sustained the finding of the trial court. But, the Texas Supreme Court knew better. They ruled that he did not prove he was innocent, and ordered him back to prison. It went something like this: 390. cigarlaw - 3/2/2000 8:34:36 PM His boss: "I did. I guess they didn't write it down." 391. cigarlaw - 3/2/2000 8:35:31 PM Dissenting Supreme Court Justice: "I can't think of a better case for innocence than this one. This case was a very weak case at best. It was based entirely on the fact that no one saw him for three hours and hearsay statements that were made by his friends. Some friends. If the DNA did not match, after the District Attorney claimed the person who killed her also raped her, what more evidence be you need to establish that this is not the murderer?" 392. cigarlaw - 3/2/2000 8:35:52 PM 393. IrvingSnodgrass - 3/2/2000 8:59:31 PM Cigarlaw: 394. Angel-Five - 3/2/2000 11:09:08 PM Ah, Texas. 395. MsIvoryTower - 3/2/2000 11:11:32 PM From what I understand from my learned Profs, Texas has an almost obsessive love of jury verdicts, and is loath to overturn them. 396. MsIvoryTower - 3/2/2000 11:22:41 PM DaveM 397. Angel-Five - 3/2/2000 11:46:22 PM Texas, Texas, Texas. 398. IrvingSnodgrass - 3/3/2000 10:15:17 AM 399. TabouliJones - 3/3/2000 12:38:09 PM Cigarlaw, 400. cigarlaw - 3/3/2000 1:42:18 PM Second-degree murder arose out of the same judicial mindset that created extortion, and some of the other theft crimes. Back with every felony was punishable by death, judges did like that so the created other, non-death penalty crimes in England. In the 1870s, when the legislatures started to codify the various statutes following the Field' s Code in New York as their model, most of these judicial creations were kept in the codes by the legislatures. 401. cigarlaw - 3/3/2000 1:42:57 PM My client was convicted of manslaughter, but the jury told me that there was no one there who would have voted for guilt for murder because they thought he was defending himself. Of course, that was the defense, but to take a look at the voluntary manslaughter instruction and the self defense instructions, there is almost no difference between the two. When I asked why they didn't vote for not guilty on self defense, they said, "well, he put himself in this situation. He knew this man was gay and he still went out into a field in his car with him, what did he think was going to happen?" 402. cigarlaw - 3/3/2000 1:44:47 PM CALJIC 8.10 403. cigarlaw - 3/3/2000 1:46:58 PM CALJIC 8.11 404. cigarlaw - 3/3/2000 1:48:00 PM 405. cigarlaw - 3/3/2000 1:48:57 PM 406. cigarlaw - 3/3/2000 1:50:15 PM CALJIC 8.30 407. cigarlaw - 3/3/2000 1:50:44 PM 408. cigarlaw - 3/3/2000 1:56:09 PM if you have difficulty understanding this, imagine how a juror feels when the judge spends several hours reading this in a monotone. the average muder case probably has upwards of 100 separate jury instructions. 409. cigarlaw - 3/3/2000 2:15:46 PM Sheck and Neufeld have a new book called "Actual Innocence." I would like to read it, because I understand it is quite good -- at least a criminal defense attorneys think it is. Alas, it is not electronic format, so I can't. 410. MsIvoryTower - 3/3/2000 5:27:54 PM In the crime of murder, a human fetus is defined as an unborn offspring in the postembryonic period, after major structures have been outlined. This period occurs in humans seven or eight weeks after fertilization.] 411. CalGal - 3/3/2000 5:29:39 PM deliberate killing of an unborn fetus 412. MsIvoryTower - 3/3/2000 5:31:16 PM Yes, that's another matter altogether. 413. Raskolnikov - 3/3/2000 5:34:02 PM They couldn't even get the guy for assault and battery on the mother? I can't imagine that he just glared at her to cause the death of the fetus. 414. Ronski - 3/3/2000 5:35:55 PM 415. MsIvoryTower - 3/3/2000 5:36:11 PM Don't know the details other than the murder case, Rask. My impression was that the man got off scott free, from any charges. 416. CalGal - 3/3/2000 5:48:32 PM Ms, 417. MsIvoryTower - 3/3/2000 5:51:54 PM Here's another doozy from California. 418. MsIvoryTower - 3/3/2000 5:53:52 PM Naw Calgal 419. CalGal - 3/3/2000 6:10:47 PM Ms, 420. cigarlaw - 3/4/2000 1:29:08 PM i have not checked for a long time, but abortion my be illegal under state law. i think we made it a crime after reagan was gov, but it has never been inforced. i seem to remember running across the statute in law school, right after my crim law instructor alled me a nazi for supporting roe v wade in an argument. 421. jexster - 3/6/2000 11:57:50 PM IT FYI 422. LadyChaos - 3/8/2000 12:48:55 PM I heard the most appalling news on Monday morning. Apparently, in a 5-4 decision (Scalia writing for the majority), the Court held that, when a defendant testifies on his own behalf, it is okay for a prosecutor to tell the jury on closing argument that it may draw an inference from the fact that the defendant "heard all of the testimony throughout the trial, and therefore had the opportunity to 'conform' his testimony to that of the other witnesses." 423. janjon - 3/8/2000 12:53:00 PM At least two of those birds - Rehnquist and O'Connor - should by usual yardsticks be leaving the Court, one way or another, in the next few years. Scalia (and his honcho, Thomas) alas, not. 424. MsIvoryTower - 3/8/2000 3:14:53 PM I get rabid when a Scalia opinion is discussed in class. All my classmates know of my position, and it shocks their innocent little souls that someone would dane to criticize a Supreme..... 425. Jonesatlaw - 3/9/2000 6:30:13 PM Cigarlaw- I agree with you wholeheartedly on your assessment of the Innocence Project and criminal jury instructions as well. The criminal part of the name doesn't really describe the subject of the instructions as well as it does their drafting. They are written by committees of well meaning lawyers who are buddies of the Governor or Chief Justice and law professors. It's not a formula for clarity. 426. AceofSpades - 3/9/2000 6:51:42 PM 427. AceofSpades - 3/9/2000 6:57:51 PM 428. LadyChaos - 3/9/2000 8:49:14 PM If a defendant is required by law to be present at his trial, it's patently absurd for a prosecutor to be allowed to tell the jury that they should draw any inference from the defendant's presence. 429. LadyChaos - 3/9/2000 8:52:06 PM I mean, why don't we just dispense with the presumption of innocence and impose an automatic sentence on the basis of the State's Information? 430. AceofSpades - 3/9/2000 10:03:48 PM 431. AceofSpades - 3/9/2000 10:05:11 PM 432. AceofSpades - 3/9/2000 10:18:52 PM 433. AceofSpades - 3/9/2000 10:28:53 PM 434. AceofSpades - 3/9/2000 10:40:34 PM 435. LadyChaos - 3/10/2000 10:01:24 AM Ace, 436. LadyChaos - 3/10/2000 10:34:10 AM MsIT, 437. Dantheman - 3/10/2000 10:41:06 AM LC, 438. LadyChaos - 3/10/2000 11:06:50 AM Dan, 439. Dantheman - 3/10/2000 11:33:01 AM LC, 440. jexster - 3/10/2000 11:04:22 PM I'm glad I'm out of litigation, and hope never to see the inside of a courtroom again. 441. MsIvoryTower - 3/11/2000 8:45:04 PM LadyC 442. jexster - 3/11/2000 9:28:41 PM Geez IT. I always knew you were strange 443. MsIvoryTower - 3/11/2000 10:45:35 PM Hahahaha, 444. jexster - 3/12/2000 12:56:57 AM No because you like law school. And yes dearie, you are too sensitive - too sensitive to be a lawyer! 445. MsIvoryTower - 3/12/2000 9:24:15 AM Well, definitely too sensitive to be a criminal lawyer. I could do personal injury (torts) but I'd have to stop laughing at some of the claims long enough to get a client..... 446. wonkers2 - 3/12/2000 9:49:42 AM Anybody have any thoughts on the trend toward criminal prosecution of athletes for assault for actions on the rink or court. A high school senior basketball player was just sentenced to five years for sending an opponent to the hospital with a forearm or elbow to the head. 447. IrvingSnodgrass - 3/12/2000 10:19:25 AM wonkers: 448. arkymalarky - 3/12/2000 10:21:48 AM That actually happened to a friend of ours. Our friend's sister took pictures of her son and his all soapy in the tub when they were boys and had been playing, and the photo lab refused to develop them, though they didn't report anything. She was mortified. 449. joezan - 3/12/2000 10:27:20 AM 450. wonkers2 - 3/12/2000 10:32:03 AM I agree completely on the porn. The appropriate role of law enforcement in sports is complicated. You can see what would be assaults anywhere else in every hockey game. The owners use violence to sell tickets. What about a clipping penalty in football or piling on or unnecessary roughness or other personal fouls that can and do result in injuries? And what about the mayhem in tough man contests which I am seeing with quite a bit of frequency on TV? The basketball case was certainly egregious. But I guess I'm leery of letting law enforcement and the courts into the education process or into sports, in anything but the most absolutely worst cases. They tend to go overboard on punishment, apparently feeling they have to send a message. Maybe the recent hockey and the basketball cases warranted application of the criminal law, but, as you said, five years was quite severe in the high school basketball case. Maybe the schools and parents need to do a better job of controlling coaches who encourage dirty play. But then who is going to control the parents? 451. joezan - 3/12/2000 10:40:52 AM 452. MsIvoryTower - 3/12/2000 11:00:19 AM Oh Goodie, battery! 453. MsIvoryTower - 3/12/2000 11:06:30 AM I should qualify that last point: the mental culpability required in child pornography was that one intended to, or knowingly took the pictures, not that one knowingly (intended) to engage in pornography. 454. wonkers2 - 3/12/2000 3:31:52 PM Msit, I doubt that it was even contemplated, let alone the will of the people, that idiot prosecutors and judges would prosecute parents for taking nude pictures of their pre-teen children or that it's okay to have sex with a seventeen-year-old but it's not okay to take a nude picture of him or her, for your personal, private, non-commercial purpose. I think I'm gradually turning into a libertarian. The Justice Department is clearly over-staffed if they have nothing better to do than chase down every tip from our neighborhood drugstore photo processor. 455. wonkers2 - 3/12/2000 3:41:05 PM joezan, I was aware of the prior conviction for burglary, but I still think five years, or even one year is too long in the case. But I sure don't condone what he did or question that some serious punishment is called for, beyond kicking him off the basketball team. And I'm more of a fan of the Gretzky style of hockey than that of Gordy Howe. And I'm not sure where the line will be drawn for when law enforcement will intervene in prosecuting sports fouls. The school boards and principals and parents need to tell the coaches to make the kids knock it off and coach them to play hard but clean. 456. MsIvoryTower - 3/12/2000 4:11:13 PM Wonkers, 457. PelleNilsson - 3/12/2000 4:16:34 PM I'm absolutely unfamiliar with the American legal code. I have often seen reference to "statutory rape". What, exactly, does that mean? Are there other kinds of rape (legally, I mean)? 458. LadyChaos - 3/12/2000 4:53:53 PM wonkers, 459. joezan - 3/12/2000 5:09:54 PM 460. LadyChaos - 3/12/2000 5:17:58 PM joe, 461. joezan - 3/12/2000 5:34:36 PM 462. wonkers2 - 3/12/2000 11:02:13 PM msit, my point went to the intent of the voters, or the Congress, in passing anti-child pornography laws not covering cases like the ones we've been discussing. Most people agree that child pornography should be punished. But most people also agree that the interpretation that sent the 23 year old to jail for photgraphing his 17 year old fiance for their own reasons and prosecuting the mother for taking pictures of her small children in the bath should not be prosecuted. So, there's either something wrong with the law or with its administration or both. Prosecutors and judges abuse their discretion. Just because some photoprocessor brings something to their attention it doesn't mean they have to investigate, let alone prosecute, let alone try to put somebody in jail. Just because there is a silly law on the books does not mean they have to enforce it. There are plenty of laws on the books that aren't enforced, or are rarely enforced. Saying they have no choice but to prosecute is bullshit, in my opinion. 463. joezan - 3/12/2000 11:28:05 PM 464. wonkers2 - 3/12/2000 11:40:01 PM Joe, I didn't see that. Sometimes there's a reasonable explanation for what seems unreasonable on the surface. The articles on the "kiddie porn" cases didn't describe the pictures. Maybe the four-year-old had a dildo in the tub instead of a rubber ducky. 465. joezan - 3/12/2000 11:49:24 PM 466. MsIvoryTower - 3/13/2000 12:04:19 AM Wonkers 467. MsIvoryTower - 3/13/2000 12:07:12 AM Btw, child pornography falls under federal statutes, as I said before. There may be many state laws that are ignored, but not many federal ones are. And anything having to do with children is going to have a high priority. 468. MsIvoryTower - 3/13/2000 12:08:32 AM Too many btw's.... 469. joezan - 3/13/2000 12:26:33 AM 470. Jonesy - 3/13/2000 12:42:03 AM An odd historical note on the issue of statutory rape. In many cases such statutes were directed not at the protection of youth in general, but of female virgins. Most old statutes only applied to females, and only if the "victim" was a virgin. Nebraska's statute began with language something like- "the crowning jewel of her maidenhood" and created an affirmative defense if the young woman was not a virgin. Thus adults could sexually contact the wanton to their hearts content, so long as actual consent were given. Only other minors could deflower virgins outside of wedlock with no fear of the law. Young boys were fair game if the other party were female. (Although debauching a minor charges would have been possible, if the youngster would have reported the activity.) 471. wonkers2 - 3/13/2000 7:51:24 AM MSIT, You sound like a great candidate for the INS. That's their line too. They have no discretion. 472. MsIvoryTower - 3/13/2000 8:42:22 AM Funny Jonesy. 473. MsIvoryTower - 3/13/2000 8:48:13 AM Taking Joezan's comment further, 474. LadyChaos - 3/13/2000 10:52:11 AM Zan, 475. wonkers2 - 3/13/2000 5:14:10 PM Msit, Without seeing the pictures it's hard to tell, but from the news reports, the pictures the Ohio mom took of her kids for her own use were not pornographic at all unless the law says that all nude photos of children are by definition pornographic. (I haven't read the law.) Therefore, the U.S. attorney had to make a judgment call whether the pictures were pornographic and whether the conduct conflicted with the purpose of the law, i.e., protecting children from being exploited in commercial pornography in interstate commerce. I'm not a lawyer, but I was talking to a good one who said prosecutors have a lot of latitude to use their common sense whether or not to investigate and prosecute UNLESS the law specifically proscribes prosecutorial discretion. The same for judges in sentencing. Ergo, we don't have to investigate and prosecute and incarcerate at public expense in marginal cases where commonsense dictates forebearance. In addition, my impression is that pornography has been defined by the law in various ways at various times in various communities. So, there is some discretion inherent in such cases. 476. LadyChaos - 3/13/2000 8:53:34 PM wonkers, 477. Jonesatlaw - 3/14/2000 12:48:47 AM Lady C- good luck! I understand that Cuban nationals from the Mariel boatlift are in a legal limbo if convicted of any of the numerous crimes that Congress in its infinite tinkering have cobbled together to fight the drug war. From a political perspective, maybe we should send them back with Elean. 478. joezan - 3/14/2000 6:44:09 AM 479. MsIvoryTower - 3/14/2000 8:49:48 AM LadyC 480. LadyChaos - 3/14/2000 9:23:07 AM Jesus H. Christ, whoever said anything about the Mariel? This guy was living here before the Mariel, and no, he was not a drug dealer. He did his time in federal pen based on a plea bargain, and the same Justice Department that now keeps him locked up pending a deportation that will never occur recommended him for early release based on his being a model prisoner. The principle is simple: If somebody does his time, that should be it. To continue punishing him violates the 8th Amendment. 481. LadyChaos - 3/14/2000 9:30:58 AM Jones, 482. LadyChaos - 3/14/2000 9:33:47 AM But you're right in that, for Cubans, the law amounts to a life sentence, because Cuba will not take them back under any circumstances. This is not just limited to the Marielitos, nor to criminals. There are, in fact, a large number of upstanding citizens who Cuba would not take back because they might cause political trouble. 483. JonesAtLaw - 3/14/2000 8:03:54 PM It is a travesty that there has been no success in relocating Cuban offenders in a third country, or in pardoning them if appropriate, or returning them to Cuba. The situtation is Kafkesque. I have little sympathy for them if justly convicted, and serving their time. I would have little problem with some sort of limited time period for detention while their status was litigated, but to cast them into a lifetime limbo is neither just nor wise. 484. JonesAtLaw - 3/14/2000 8:08:19 PM LadyC- is there still a possibility of asylum on political grounds once there is a "serious offese" conviction? If so, your guy needs to write some letters to the editor in Miami and Havana. Maybe he should join Pat Robertson's church or something. I wished you luck in a rather gallows humor way before, but I do wish you the best fortune in all seriousness. The issue is really an important one. 485. LadyChaos - 3/14/2000 11:42:11 PM I don't see what the fairness would be to those third countries by sending them the criminals that Cuba doesn't want. 486. DaveM - 3/15/2000 10:05:31 AM MsIT: 487. MsIvoryTower - 3/15/2000 9:39:50 PM Hahaha, DaveM 488. MsIvoryTower - 3/15/2000 9:49:33 PM Oh my, major mistake. Just checked again, and Torres is in property, but environmental and agricultural property law. No wonder I'd not seen him in the list of classes I'm interested in taking. 489. DaveM - 3/16/2000 8:17:47 AM MsIT - 490. wonkers2 - 3/16/2000 9:47:45 AM PRISONS FOR PROFIT--Horror stories from a prison for teenagers prompt judicial action. 491. wonkers2 - 3/16/2000 10:14:11 AM WAckenhut: 492. Jonesy - 3/16/2000 11:59:37 PM Re Wakenhut- Gee, it seems that the private sector can't do everything better and cheaper than the public sector. This is especially true if denial of services is the source of the profit margin. 493. LadyChaos - 3/17/2000 12:10:22 AM The prison industry loves the Drug War, you can bet on that. Meanwhile, local governments continue to treat prisons as employment boondoggles. I'll never forget reading a feel-good news story about how some former auto workers in one town had been successfully retrained as prison guards. Does anybody out there have a sense of irony? 494. Stumbo - 3/17/2000 3:26:59 AM LC: 495. Jonesy - 3/17/2000 3:35:21 AM Stumbo- I think that anyone qualified to be a NBA star and a teacher would pick NBA star, but teachers salaries are lower. I don't think that your example always follows. 496. Stumbo - 3/17/2000 4:08:12 AM Jones: 497. joezan - 3/17/2000 7:09:48 AM 498. joezan - 3/17/2000 7:40:16 AM 499. wonkers2 - 3/17/2000 8:11:05 AM Stumbo, Just seems to me, of the top of my head, it would be better to have more in college than prison. Doesn't take a rocket scientist or any "theoretical reasons" at all. Just having a heart beating in your breast. 500. wonkers2 - 3/17/2000 8:13:24 AM It's called California (and Texas and Florida) style GOP affirmative action. The only kind the GOP supports. 501. LadyChaos - 3/17/2000 10:52:22 AM Stumbo, 502. jexster - 3/17/2000 4:28:25 PM Here's one for you legal beagles, budding or otherwise blossomed and wilted. 503. jexster - 3/17/2000 4:30:39 PM WRT the on going discussion of criminal justice, 504. Dantheman - 3/17/2000 4:31:51 PM jexster, 505. Dantheman - 3/17/2000 4:32:18 PM 504 was to 502. 506. jexster - 3/17/2000 4:35:07 PM So I told a meeting of the Alice B Toklas LGBT Demo Club the other night only to meet the insolent rebuff of a dyke anthropologist of all people - "Remember Dred Scott" 507. Jonesatlaw - 3/17/2000 5:41:56 PM I think that full faith and credit will require that there be some recognition of the existence of the civil union- however that legal creature is construed. Through the dark mists of my memory of first year con law- I think that the southern states were forced to recognize miscegenatious marriages performed outside their jurisdictions. Haven't researched it yet, though. 508. LadyChaos - 3/17/2000 6:10:04 PM The middle sentence in #501 is an incomprehensible mess. In the interest of clarity: 509. Jonesy - 3/17/2000 11:50:32 PM Jex- or is it labrys? In any event discretion is the better part of valor. 510. Stumbo - 3/18/2000 12:32:57 AM LC, Wonkers: 511. LadyChaos - 3/18/2000 11:12:20 AM Stumbo, 512. LadyChaos - 3/18/2000 3:31:59 PM Here is a chart showing that illicit drug use is the least among all statistically enumerable causes of preventable death - less than a fourth of the percentage caused by alcohol, about one-fourteenth the rate of diet/exercise (which suggests that perhaps we need to prohibit McDonald's and SUVs), and about one-twentieth the rate of tobacco. 513. LadyChaos - 3/18/2000 9:35:19 PM The prison boom is not only a goldmine for private prison companies, but also provides a source for cheap prison labor which manufacturers seem anxious to exploit. 514. Stumbo - 3/19/2000 3:11:06 AM LC: 515. LadyChaos - 3/19/2000 12:08:49 PM Stumbo, 516. LadyChaos - 3/19/2000 12:09:57 PM P.S. The cite is 186 F.3d 469 (1999). 517. wonkers2 - 3/19/2000 5:50:15 PM Prison Labor--in the late 1960s when unemployment was low and car sales were booming Pontiac Division of GM tried a model of prison labor that may be worth a try again. The company and the union worked out with the Michigan prisons authority an arrangement under which a hundred or so soon to be paroled prisoners were moved to a minimun security facility in Pontiac. They were hired by Pontiac at the regular automobile industry rate. Their wages went into the bank or to a dependent, and dependents received regular auto industry health care and other benefits. The prisoners became dues paying members of the UAW and began to accumulate seniority at the plant. The company agreed to hire them as regular employees when they were paroled. This arrangement worked great. The prisoners were bussed every day to and the plant. Absenteeism was close to zero. And there was hope of a permanent job upon release from prison. But not long after that recessions and layoffs and world competition came which meant the end of such an arrangement. It was great while it lasted. 518. Jonesy - 3/20/2000 3:59:03 AM Lady C- Your wish is my command- Ferguson v. City of Charleston 519. DaveM - 3/20/2000 3:04:54 PM Lady - 520. LadyChaos - 3/20/2000 4:37:46 PM DaveM, 521. Stumbo - 3/20/2000 7:35:13 PM LC: 522. TabouliJones - 3/20/2000 9:14:54 PM 523. wonkers2 - 3/20/2000 9:44:12 PM It's a pleasure to see a keenly analytical mind at work! 524. Stumbo - 3/21/2000 12:44:07 AM TJ: 525. LadyChaos - 3/21/2000 9:23:23 AM Stumbo, 526. LadyChaos - 3/21/2000 9:28:04 AM These factors, viewed on an individual basis, may not have much meaning to the average person. But viewed on a larger scale, they pose certain consequences. One of the most difficult social issues facing every city in this country continues to be the entrenched, black, urban underclass. Now, even assuming a conservative point of view that neither the government nor the state has an obligation to cure such social maladies, one should at least consider the first principle of medicine, which is to "do no harm." Imprisoning vast numbers of African American males does great harm, and poses a great cost to society. It exacerbates the very problems that we're supposedly trying to cure, or at least it makes things worse where the conservatives among us are hoping that people will be able to better themselves. 527. LadyChaos - 3/21/2000 9:29:01 AM Fifty-four percent (54%) of blacks convicted of drug offenses get sentenced to prison versus 34% of whites convicted of the same offenses. Forty-four percent (44%) of blacks get prison sentences for possession versus 29% of whites; 60% of blacks are sentenced to prison for trafficking while 37% of whites are sentenced to prison for the same crime. 528. LadyChaos - 3/21/2000 9:29:17 AM 1.46 million black men out of a total voting population of 10.4 million have lost their right to vote due to felony convictions. 529. LadyChaos - 3/21/2000 9:32:17 AM 530. Jonesatlaw - 3/21/2000 2:28:18 PM Lady C- your statistics point out some interesting things. One, given the increase in black offender incarceration after the federal guidelines it would seem that racism is not behind the sentencing behavior of judges. I conclude this based on the assumption that there has been no significant shift in the nature of offenses in the times indicated, and assume that the minority group would recieve harsher punishment under discretion of judges, while guidelines reducing the discretion would draw the averages closer. 531. LadyChaos - 3/21/2000 2:47:56 PM Jones, 532. Jenerator - 3/21/2000 2:51:19 PM LadyChaos, 533. Jonesatlaw - 3/21/2000 3:00:31 PM LadyC- I agree that the guidelines have been harshly criticized by the federal bench, and rightly so. The guidelines have some decent intentions, but are a thicket of complications. The end result is that the sentences are almost uniformly harsher for drug cases, and other "traditonal" crime. The white collar stuff is still lax, but the forfeiture side bites hard. 534. LadyChaos - 3/21/2000 5:54:16 PM Jenerator, 535. Stumbo - 3/21/2000 6:51:07 PM LC: 536. DaveM - 3/21/2000 6:51:20 PM Ladychaos - 537. LadyChaos - 3/21/2000 6:57:20 PM DaveM, 538. Jonesatlaw - 3/21/2000 11:27:29 PM DaveM- the guidelines do increase the power of the local USA. Your observation is a good one, but I can't really tell you if racism in the DoJ is the cause or not. 539. Jonesatlaw - 3/21/2000 11:33:17 PM CalGal- Your reasoning that guns are useful against government tyrany is interesting, but begs the question. Are there limits to the type of arms protected by the second amendment? For example, Claymore mines would be a rather useful thing in a standoff with overreaching government agents. Koresh and his followers would have made Waco a rather different thing if there were mines available to them. Fully automatice weapons are registered, taxed and highly regulated by the Feds- is this covered by the second amendment? 540. Jonesy - 3/22/2000 12:15:38 AM All- my apologies for misplacing post 539. Lady C- could you delete it, as I intended to post in current events? Thank you. 541. MsIvoryTower - 3/23/2000 9:14:07 AM Here's a tangent question LadyC, I note that in Message # 525 you mention a figure of $30K/prisoner for annual upkeep. In my crim law class the other day, someone mentioned that the cost of putting prisoners to death (who are sentenced for a capitol offense), is more than the cost of lifetime incarceration. 542. Dantheman - 3/23/2000 9:16:49 AM MsIT, 543. MsIvoryTower - 3/23/2000 10:03:05 AM Dan 544. Dantheman - 3/23/2000 10:08:43 AM MsIT, 545. MsIvoryTower - 3/23/2000 10:10:56 AM Yes, I know all that Dan. However, the appellate courts do not spend all their time reviewing capitol offense cases, they would exist regardless of them. 546. Dantheman - 3/23/2000 10:20:14 AM MsIT, 547. LadyChaos - 3/23/2000 12:42:03 PM MsIT, 548. Jonesatlaw - 3/23/2000 12:48:33 PM MsIT- There are many more expenses associated with death penalty cases than just those involved in the courts themselves. Usually there is a considerable amount of cost associated with the government's case. In Nebraska, when I was a clerk at the Attorney General's office, there was a senior Assistant AG who was devoted full time to death penalty cases. He had an assigned secretary and was assisted by several assistant AG's on an ad hoc basis. This was in a state where there were about a dozen men on death row. This was also under an administration that had not made death penalty cases their priority for political gain. Every death penalty case is guaranteed to go through at least direct appeal, and the vast majority go through the state system on post conviction relief, and on to the federal system. At the federal level, the application for habeas corpus is likely to go through the district court, the court of appeals and an application for cert to the Supreme Court. Applications somtimes are remanded for evidentiary hearings in state court, and back up again. 549. Absensia - 3/23/2000 1:02:43 PM Here's a site discussing costs. Interesting. 550. Thoughtful - 3/23/2000 1:04:03 PM For Absensia, that's the link. 551. Absensia - 3/23/2000 1:05:57 PM Thanks Thoughtful, 552. MsIvoryTower - 3/23/2000 4:32:50 PM I don't know enough about the data cited in the study linked by Absensia, but here's a typical paragraph from the beginning: 553. CalGal - 3/23/2000 4:41:34 PM It seems to me that we'd only abolish the costs that are currently associated with capital punishment (assuming these numbers are accurate) if we assume that all prisoners that are now executed are stuck in jail without any further review--or substantially less review than their cases get because of the finality of the death penalty. 554. Jonesatlaw - 3/23/2000 5:01:09 PM CalGal- the competant do gooders come into play only after woefully underpaid and often inexperienced or incompetant attorneys have mucked the case up. If the states were wise, they would cut off some the expense of these appeals by creating fewer errors at trial. Also, there are more procedural safeguards required for death penalty cases. Much of the heartache of victims families is incurred by the long time it takes to exhaust the appeals process in death penalty cases. The process is shorter in non capital cases, and "closure" comes more quickly. However, that doesn't get you face time on the 6:00 news, so politicians play the death penalty for all its worth. 555. CalGal - 3/23/2000 5:04:14 PM Jones, 556. Dantheman - 3/23/2000 5:21:15 PM CalGal, 557. Absensia - 3/23/2000 5:32:44 PM MsIT..there are a lot of links at that site..in fact, the one I first tried to post is the one from the federal government report, 558. MsIvoryTower - 3/23/2000 6:17:04 PM Absensia 559. MsIvoryTower - 3/23/2000 6:20:18 PM I might add that Calgal's Message # 555 raises an interesting twist on this issue as well. Would elimination of the death penalty actually improve the quality of legal services available to the poor? If not, would elimination actually leave many with lower quality representation? 560. LadyChaos - 3/23/2000 7:08:41 PM 561. JonesAtLaw - 3/23/2000 9:46:32 PM The justification for the poor pay and resources provided to indigent defendants is that there are insufficient funds available, not that we really don't care about indigent defendants. (However true it may be- Know of any prosecutors or cops that have gone without pay for a year? It happens to criminal defense attorneys. Know of any police or prosecutors who haven't had a raise in over five years- Criminal Justice Act attorneys just got a five dollar an hour raise in my district. The first one for *ten* years.) We could split the costs in half, and still drastically increase the resources available to indigent defendants, while passing on a savings to the taxpayer. We'd have the added benefit of increased confidence in our justice system and the satisfaction of living up to our hallowed pledge of liberty and justice for all. 562. MsIvoryTower - 3/23/2000 11:12:52 PM Jones 563. MsIvoryTower - 3/23/2000 11:14:28 PM Jones 564. MsIvoryTower - 3/23/2000 11:17:02 PM Dang, I don't know how that happened. 565. Candide - 3/24/2000 1:25:05 AM From "The Sydney Morning Herald" March 24, 2000 566. Candide - 3/24/2000 1:26:13 AM Fraser says no legislative changes are 567. Candide - 3/24/2000 1:26:34 AM Fraser says some Australian hate groups are 568. Jonesatlaw - 3/24/2000 12:40:59 PM MsIT- I was attempting (poorly) to say that better lawyering leads to better testing of the government's evidence at trial, and greater confidence in the justice of the verdict. 569. LadyChaos - 3/24/2000 1:23:15 PM Did anyone see John Stossel's report last night on ABC, entitled "Whatever Happened to Free Speech?" I found it to be an eye-popping expose on how much free speech has been eroded by political correctness, inter alia, on college campuses. It definitely made me give my views on hate crimes and hate speech laws a second thought. 570. pseudoerasmus - 3/24/2000 1:27:11 PM Americans bleat endlessly about how much freedom they have, when in fact they have rather little compared with dozens of other countries. 571. LadyChaos - 3/24/2000 1:34:55 PM More evidence that the Drug War is starting to look more like a real war. I wonder how many more people will have to die, and how many constitutional freedoms we will have to lose, before we wake up and realize that we're paying far too high a price to try to protect a small minority of addicts from their own worst instincts. 572. Jonesatlaw - 3/24/2000 1:43:23 PM Pseudoerasmus- in regard to free speech, I would strongly disagree with you. Regarding other safeguards against government intrusion, I think your point is stronger. Most of the developed world has safeguards against excessive governmental restrictions and interventions in the private lives of their citizens at least as robust as the US. In regard to economic rights, Europe, the US and Japan probably take a backseat to other more lassiez faire oriented countries in southeast asia etc. 573. pseudoerasmus - 3/24/2000 1:50:36 PM Jonesatlaw strongly disagrees with me. I'm terribly moved, as though Jonesatlaw knows something about life outside the USA. 574. Jonesatlaw - 3/24/2000 1:53:14 PM Pseudoerasmus- Prior restraint is allowed in Canada, the UK and Australia. In the US it is not. With respect to freedom of speech, that is a world of difference, whether one is as traveled as you are or not. 575. pseudoerasmus - 3/24/2000 1:53:54 PM The USA certainly has more economic freedom than Western Europe, though. 576. pseudoerasmus - 3/24/2000 1:55:59 PM Jonesatlaw, prior restraint has much less impact on ordinary life than you must be supposing. Canada, Australia and the UK are also not the extent of the world outside your USA. 577. arkymalarky - 3/24/2000 2:00:22 PM I'm a teacher in a conservative state so my perception is skewed, and I don't have much experience in other countries, but I tend to agree with PE. And it certainly varies from place to place within the US. 578. Jonesatlaw - 3/24/2000 2:01:30 PM Pseudo- I mentioned those nations only because of my familiarity with issues relating to the right to a fair trial and the right of the public to access to court proceedings. Sharing a common law heritage with those nations, US courts are more inclined to look to them as persuasive authority on these sorts of questions. Prior restraint or wholesale bans on certain types of speech exist in other otherwise free nations. Germany's ban on Nazi literature etc is one example. 579. pseudoerasmus - 3/24/2000 2:02:32 PM Well, my perception may be skewed because I'm at a university where the likes of DaveM seem to run amock and where things can be positively oppressive, at least compared with the outside world and compared with when I was an undergraduate in the second half of the 1980s. 580. TabouliJones - 3/24/2000 2:05:01 PM Canada is not oppressed by political correctness. Certainly we hear plenty of aggressive PC blather, but it all tends to circulate on certain university campuses -- the same place it thrives in the U.S. Of course, our government and our constitution flirt to some degree with PC notions, but we are certainly not oppressed by politcal correctness. And we most certainly do not have any touchy feely politicos running around getting as much attention as Hilary Clinton. The notion that Canada is some sort of PC wasteland is somewhat stereotypical. Of course, one could easily be subjected to more odious sterotype, so we can't really complain. 581. Jonesatlaw - 3/24/2000 2:05:11 PM Political correctness is a problem in the US but it is not yet a legal restraint. I won't venture a guess as to what kinds of social oprobation one faces in other countries concerning unfavored opinions because, as Pseduo so kindly points out, my experience doesn't allow me to. 582. LadyChaos - 3/24/2000 2:06:40 PM The Stossel piece last night featured a group of college students bragging about how they could run anybody that they disagreed with off-campus. 583. pseudoerasmus - 3/24/2000 2:09:14 PM #581 584. Jonesatlaw - 3/24/2000 2:09:41 PM Rampant political correctness relies on a certain unreasonableness and stidency that I do not associate with the Canadian character. 585. CalGal - 3/24/2000 2:09:45 PM I think a significant restriction to freedom in the US is that our lack of social safety net makes employment very important. 586. Jonesatlaw - 3/24/2000 2:11:08 PM Pseudo- what sort of freedom are we speaking of? Do you mean that one can express one's views without any consequence either social or legal? I cannot think of any place such as that. 587. pseudoerasmus - 3/24/2000 2:11:10 PM Tabouli, most urban types in all the Anglophone countries, and I'm talking about people outside campuses, are disgustingly PC. 588. CalGal - 3/24/2000 2:11:31 PM Oh, I understand the PC bit now. I don't see that as a problem. It's actually more of a problem legally than in day to day life. It's also only a problem when people choose to make it such--which, as has been mentioned, seems to happen more on college campuses than anywhere else. 589. TabouliJones - 3/24/2000 2:11:59 PM Jones, 590. CalGal - 3/24/2000 2:12:05 PM Yes, but "disgustingly PC" has nothing to do with freedom. That's a personality trait. 591. Jonesatlaw - 3/24/2000 2:14:24 PM Tabouli- yes I am aware of section 1 of the Charter, and it is the enshrinement of "reasonableness" as a fundamental standard of government and rights that has struck me as the quitesence of the Canadian character. 592. Jonesatlaw - 3/24/2000 2:15:51 PM make that "quintesentially Canadian" 593. TabouliJones - 3/24/2000 2:17:59 PM 594. CalGal - 3/24/2000 2:19:57 PM But again, what is this association of PC expectations with freedom? 595. Raskolnikov - 3/24/2000 2:21:46 PM Pseudo: what "corporate prerogatives" are you talking about? 596. TabouliJones - 3/24/2000 2:23:23 PM 597. LadyChaos - 3/24/2000 2:25:35 PM CalGal, 598. Jonesatlaw - 3/24/2000 2:26:27 PM every time a statute uses the word reasonable, lawyers everywhere make bundles of dough. 599. TabouliJones - 3/24/2000 2:27:12 PM 600. pseudoerasmus - 3/24/2000 2:28:16 PM #586 601. pseudoerasmus - 3/24/2000 2:29:25 PM # 593 602. pseudoerasmus - 3/24/2000 2:30:27 PM # 590 603. Jonesatlaw - 3/24/2000 2:31:08 PM LadyC- speech in the workplace has always been subject to censorship. Do you think that telling a customer that there is a better sale on some goods your employer offers at a competitors store wouldn't get you fired? Expressing your observation that all of the guys and gals in management are fools or that the folks in marketing are lazy etc. has always put ones employment at risk. How is title VII different? 604. CalGal - 3/24/2000 2:34:15 PM Pseudo, 605. LadyChaos - 3/24/2000 2:34:31 PM Why anyone who has the option of working somewhere other than the USA, continues to work in the USA, I have never understood. 606. Jonesatlaw - 3/24/2000 2:37:49 PM Pseudo- I understand now. You find the American lifestyle stultifying and boring. Fair enough. However, it is the result of free choices of Americans. They seem to like their choices, whether you would make the same ones or not. You paint a picture of only a part of America, though. A substantial number of us live in situations wholly unlike what you picture. 607. LadyChaos - 3/24/2000 2:38:42 PM CalGal, 608. Raskolnikov - 3/24/2000 2:38:47 PM "you can't even see "unedited" films on regular television in your great fucking country of the USA." 609. CalGal - 3/24/2000 2:40:56 PM Why anyone who has the option of working somewhere other than the USA, continues to work in the USA, I have never understood. 610. arkymalarky - 3/24/2000 2:41:33 PM PE's description of suburban America in #600 would be a nightmare to me. 611. pseudoerasmus - 3/24/2000 2:42:54 PM # 604 612. CalGal - 3/24/2000 2:43:55 PM Lady, 613. Raskolnikov - 3/24/2000 2:47:59 PM "PE's description of suburban America in #600 would be a nightmare to me." 614. CalGal - 3/24/2000 2:48:02 PM PE, 615. pseudoerasmus - 3/24/2000 2:51:54 PM #606 616. Raskolnikov - 3/24/2000 3:00:10 PM No, I think that a lot of democratically or socially imposed restrictions are still restrictions. Editing movies for television annoys the shit out of me, which is why I pay a modest sum for satellite. But there is a difference between such restrictions and a mere dislike of dominant aesthetic tastes. 617. Dantheman - 3/24/2000 3:01:55 PM pe 615, 618. pseudoerasmus - 3/24/2000 3:02:41 PM #609 619. pseudoerasmus - 3/24/2000 3:03:55 PM #617 620. LadyChaos - 3/24/2000 3:05:31 PM The government subsidizes this choice in many ways, through the home-owner's exemption and road construction mostly, but the decision to expand the suburbs indefinitely has been that of the homeowner. 621. Raskolnikov - 3/24/2000 3:07:21 PM "It is not a totally free choice. Urban planning in the USA, it seems, is for concentrating the maximum number of people around strip malls and other commercial developments. In fact in many cases it's commercial developers, not normal human beings, which determine how and where millions of Americans live. Just because Americans are not literally compelled to move to such places, doesn't mean that the menu of possiblities hadn't been rigged and restricted by someone else earlier." 622. pseudoerasmus - 3/24/2000 3:07:32 PM I repeat: 623. Dantheman - 3/24/2000 3:08:42 PM pe #619, 624. CalGal - 3/24/2000 3:09:31 PM Hence, the principle. Study in the USA. Work in the USA. Make lots of money. Then run. 625. Raskolnikov - 3/24/2000 3:11:17 PM I do see Pseudo's point about suburban development. A lot of this development is subsidized by non-suburbanites, distorting the extent to which the costs are truly a reflection of the choices. But my argument would still be that since land ownership is so much cheaper in this country, it provides choices and freedoms that are not available in most of crowded Europe and East Asia. 626. CalGal - 3/24/2000 3:12:21 PM Also, whether you have cable or not, the one government funded station (PBS) does not edit movies. 627. Dantheman - 3/24/2000 3:13:36 PM LadyChaos 620, 628. Raskolnikov - 3/24/2000 3:14:21 PM Pseudo: 629. pseudoerasmus - 3/24/2000 3:14:49 PM Well, now that I have raised some nationalist hackles, I will now leave you until after the weekend. 630. CalGal - 3/24/2000 3:15:50 PM Hey, don't forget to send in your Oscar ballot. It doesn't matter if you haven't seen the movies. 631. Raskolnikov - 3/24/2000 3:17:00 PM rabble-rouser. 632. LadyChaos - 3/24/2000 3:17:02 PM pseudo, 633. pseudoerasmus - 3/24/2000 3:17:13 PM # 628 634. pseudoerasmus - 3/24/2000 3:19:31 PM # 631 635. pseudoerasmus - 3/24/2000 3:22:06 PM Also, I'm comparing with and among developed countries. People in developing countries don't value political freedoms as much. 636. TabouliJones - 3/24/2000 3:26:42 PM Actually, does anyone out there sense a trend away from mall-oriented suburban development. In the last few years, Montreal and especially Toronto (my two stomping grounds) have seen a rash of new building, much of which is attempting to accomodate the influx of people fleeing the suburbs. As well: as many of the more established suburbs get larger and larger (approaching small scale city size)their municipal governments tend to try and develop a downtown core capable of mimicing some of the qualities of a regular urban setting. 637. Raskolnikov - 3/24/2000 3:29:19 PM I do live in the burbs. I don't live in a "levitown-like" development, and had no problem finding a house that wasn't in such a development. I live in a quiet neighborhood with little traffic, making it safer to raise a kid. My yard has a dozen large and gorgeous trees which would be inconceivable in most European housing units I have seen. I could have easily have chosen to live in a tony part of Minneapolis, where everything is within walking distance, few chain restaurants exist, and public transit is easy to use, and I could have done this for half the price that I paid for a London flat 10 years ago. But I preferred the trees, less noise, and cheaper housing expenses. This neighborhood is only 20 minutes away if I want to eat at one of the restaurants or attend the art theaters, which I do often. Similarly, I am a 20 minute drive from 6 non-multiplexes, and my half hour commute via car is shorter than the underground commute I had in London. Comparing living in Minneapolis and London, I do see that London had a lot more variety, but didn't even offer choices that would be a high priority for me (nice yard, large room for home theater, etc.)in homeowning, on anywhere close to a middle-class salary. Maybe London isn't very typioal. 638. CalGal - 3/24/2000 3:30:21 PM San Francisco is increasing its development of upscale apartments, I've noticed. 639. Raskolnikov - 3/24/2000 3:34:41 PM "Actually, does anyone out there sense a trend away from mall-oriented suburban development. In the last few years, Montreal and especially Toronto (my two stomping grounds) have seen a rash of new building, much of which is attempting to accomodate the influx of people fleeing the suburbs." 640. TabouliJones - 3/24/2000 3:35:16 PM 641. Dantheman - 3/24/2000 3:35:24 PM TJ, 642. TabouliJones - 3/24/2000 3:36:21 PM 643. CalGal - 3/24/2000 3:39:34 PM Dan, 644. Dantheman - 3/24/2000 3:43:15 PM Rask 639, 645. pseudoerasmus - 3/24/2000 3:44:22 PM #623 646. pseudoerasmus - 3/24/2000 3:47:48 PM Dantheman, but suburbs in Philadelphia are rather nice, certainly not as blighted as certain parts of New Jersey, Maryland and Virginia. 647. CalGal - 3/24/2000 3:49:27 PM The quality of a suburb depends on when it was built. The Bay Area suburbs that were built in the 60s and 70s are quite nice and very Californian. The newer ones are indistinguishable from those in the suburbs of Raleigh or Phoenix. 648. Dantheman - 3/24/2000 3:49:34 PM CalGal 643, 649. TabouliJones - 3/24/2000 3:50:25 PM 650. CalGal - 3/24/2000 3:50:56 PM Dan, 651. Raskolnikov - 3/24/2000 3:52:23 PM "You previously mentioned the alternative of living in Minneapolis's tony part. How long has it been tony? " 652. Dantheman - 3/24/2000 3:56:28 PM pe 646, 653. Dantheman - 3/24/2000 4:39:17 PM TJ 649, 654. Planet 9 - 3/24/2000 6:17:01 PM San Francisco is difficult to compare to other cities for a variety of reasons. In most metro areas the median cost for housing is lower in the central city than in the burbs but that is not the case in SF where housing costs are amoung the highest in the world. 655. Planet 9 - 3/24/2000 6:22:26 PM The situation is different for many older cities, particularly in the northeast and upper midwest. Some of these cities (Detriot is a good example) are fast becoming the center of a donut. All the population and job growth is in the outer suburbs (yes the big new urban issue is the flight of people from "inner ring" or (the latest catch phrase) "first" suburbs. One big challenge in these metro areas, which are frequently poorly served by transit) is how to get low skill workers in the central city and inner burbs out to the new jobs in the edge burbs. 656. LadyChaos - 3/24/2000 8:31:29 PM Thread drift.... 657. CalGal - 3/24/2000 8:44:34 PM SF isn't any more expensive than other parts of the Bay Area, unfortunately. At this point, there really isn't any place in the area that has "affordable" housing. It's not significantly cheaper to live in San Ramon than it is in Redwood City. 658. MsIvoryTower - 3/24/2000 9:24:09 PM LadyC 659. MsIvoryTower - 3/24/2000 9:25:30 PM As an aside, I think Pseudoerasmus has made some assertions that merit some support, at least beyond the cryptic bombshells he's dropped so far. 660. MsIvoryTower - 3/24/2000 9:28:33 PM As another aside, 661. pseudoerasmus - 3/24/2000 9:32:54 PM Pseudoerasmus has made some assertions that merit some support 662. MsIvoryTower - 3/24/2000 9:35:13 PM If I were writing english I would have said you were full of shit, I suppose I wasn't, however. 663. MsIvoryTower - 3/24/2000 9:36:33 PM That would be, if I were writing in plain english, that is... 664. pseudoerasmus - 3/24/2000 9:44:51 PM Most of the assertions I've made are uncontroversial things of common knowledge. Or do you dispute that the legal minimum drinking age is higher in the USA than in other developed countries? Or that there is (privately provided) censorship on USA television? Or that the average vacation time in the USA is much shorter than in Western Europe? 665. CalGal - 3/24/2000 9:50:03 PM Don't you think that many freedoms come along with "the ability to set up and run businesses"? 666. CalGal - 3/24/2000 9:50:49 PM BTW, Ms, I had a response to your post on the death penalty, but this conversation took wing before I got around to it. 667. MsIvoryTower - 3/24/2000 10:19:39 PM reMessage # 664: so your assertions regarding freedoms are relegated to the drinking, vacationing and being able to watch pornography on home television areas. 668. MsIvoryTower - 3/24/2000 10:26:03 PM Here, btw, is your original position: 669. MsIvoryTower - 3/24/2000 10:27:34 PM The comments I do tend to agree with you about are the references to the rather tedious PCishness that exists on university campuses in the US. 670. pseudoerasmus - 3/24/2000 10:47:51 PM so your assertions regarding freedoms are relegated to the drinking, vacationing and being able to watch pornography on home television areas. 671. LadyChaos - 3/24/2000 11:20:07 PM MsIT, 672. LadyChaos - 3/24/2000 11:22:05 PM I am, of course, assuming that there exists at least a smattering of a middle class in that part of the world. 673. MsIvoryTower - 3/24/2000 11:30:37 PM LadyC 674. LadyChaos - 3/24/2000 11:36:01 PM MsIT, 675. MsIvoryTower - 3/24/2000 11:41:05 PM That's because of your poor language skills. 676. MsIvoryTower - 3/24/2000 11:42:40 PM LadyC 677. pseudoerasmus - 3/25/2000 7:01:42 AM Chaos: Having spent almost all but my university years in Europe, I'm well aware of what you've said. As for South Asia, I'm pretty sure only the elites have the sort of arrangement you're speaking of. 678. Jonesatlaw - 3/25/2000 11:12:55 AM Pseudoerasmus- your notion of "freedom" is juvenile considering the nature of this thread. I assumed that you were going to argue that there were restrictions on individual liberty in the US that were something other than self imposed. Unedited movies, youth drinking, the suburbs, and political correctness are the best you can come up with to support your assertion? Political correctness is a tempest in the academic teapot. The chilling of "free speech" in the workplace is equally nonsensical. The workplace has always been a forum for the employer only. We hear the parade of horrors concerning a hostile work enviroment, but precious little actually results from court action. Mostly the actual restrictions come from over-anxious human resources departments, happy to find another way to insure their value to the company by blowing up the issue into a boogeyman to scare execs and obnoxious employees. 679. pseudoerasmus - 3/25/2000 11:47:22 AM #678 680. pseudoerasmus - 3/25/2000 11:47:47 AM Unedited movies, youth drinking, the suburbs, and political correctness are the best you can come up with to support your assertion? 681. pseudoerasmus - 3/25/2000 11:53:38 AM Actually, there are plenty of Eastern European and Asian countries which lack such stupid restrictions. 682. Jonesatlaw - 3/25/2000 12:18:42 PM high minimum drinking age -granted 683. Jonesatlaw - 3/25/2000 12:20:11 PM to pseudo continued 684. AceofSpades - 3/25/2000 12:27:17 PM 685. pseudoerasmus - 3/25/2000 1:00:33 PM I forgot one more thing. Americans are more compelled to drive cars than other peoples and they are sometimes compelled to drive hours everyday to and from work. Now, this is again not a strictly voluntary decision, because alternatives to driving in the USA are so limited and poor, and because driving cars is a byproduct of restrict residential options. 686. pseudoerasmus - 3/25/2000 1:03:08 PM a restricted menu of residential options I would argue that they are less restricted than Europe, even though the majority preference for suburbs doesn't suit your taste. 687. pseudoerasmus - 3/25/2000 1:03:22 PM Foreign employers don't monitor their employees? 688. pseudoerasmus - 3/25/2000 1:06:53 PM Ace, tits on Italian TV? Well, I'm sure you have some reason to reduce that list to merely tits on Italian TV. 689. pseudoerasmus - 3/25/2000 1:07:21 PM errata 690. CalGal - 3/25/2000 1:07:46 PM I don't think anyone assumes you are anti-American; it's just that we can believe you're seriously arguing that we have fewer freedoms just because some folks have to live in modern suburbs and can't tell tit jokes at work. 691. CalGal - 3/25/2000 1:09:30 PM Has Predator been banned here? 692. pseudoerasmus - 3/25/2000 1:12:02 PM You mean when they're not showing films from 1930? 693. AceofSpades - 3/25/2000 1:17:47 PM 694. CalGal - 3/25/2000 1:18:03 PM PBS might be aggressively "middlebrow", as you call it, but the fact is that it is not bound by the same rules as the networks. There are no restrictions at all, that I can think of. Nudity, graphic sex, language, death (the real thing)--you can see it all on PBS, as the conservatives bitch. 695. pseudoerasmus - 3/25/2000 1:23:35 PM If Predator is banned in Germany, why does it have a German certification, a German distribution company, and a German review? 696. AceofSpades - 3/25/2000 1:29:35 PM 697. AceofSpades - 3/25/2000 1:42:11 PM 698. pseudoerasmus - 3/25/2000 1:46:40 PM Well, something is clearly wrong with that list, because I've seen Grand Illusion in a Munich revival theatre, and at least one of those famous slasher movies on German TV. 699. AceofSpades - 3/25/2000 1:50:14 PM 700. pseudoerasmus - 3/25/2000 1:50:52 PM And go look up some of the individual movies themselves. All Quiet on the Western Front was banned until 1945, it says. Many other films on your list have ending years like that. Some have simply question marks for ending years. 701. pseudoerasmus - 3/25/2000 1:52:53 PM #699 702. pseudoerasmus - 3/25/2000 1:54:38 PM Well, I looked up one terribly violent movie: there seems to have been a cut version and an uncut version. 703. AceofSpades - 3/25/2000 1:54:45 PM 704. Jonesatlaw - 3/25/2000 1:54:56 PM Pseudo- I have daily contact with law enforcement and sexual deviancy does result in criminal punishment in some instances. However, the idea of the neighbors "snitching" on one another over their sexual activity is nonsense. The only prosecutions I know of relate to public sexual activity, prostitution, child abuse or the abuse of animals. What one does with one's partner(s) in private is not a matter for public censure, unless one is a politician known for clubbing others with one's high sexual morality. Surely you will acknowledge that there are social consequences for sexual behavior in other countries. I suppose that if one lived as you supposed Americans to wrt to sex in Europe, it may result in some social consequence. Being regarded as prigish, inhibited and no fun at partys might lead the list. 705. AceofSpades - 3/25/2000 1:55:56 PM 706. pseudoerasmus - 3/25/2000 1:56:30 PM #702 707. AceofSpades - 3/25/2000 1:58:16 PM 708. pseudoerasmus - 3/25/2000 2:01:24 PM #705 709. pseudoerasmus - 3/25/2000 2:02:42 PM #703 710. JayAckroyd - 3/25/2000 2:14:21 PM Please, I am talking about walking and generally moving about without armed escorts. 711. pseudoerasmus - 3/25/2000 2:21:28 PM Have you walked in the streets of South Bronx or East New York at, say, 9PM alone? 712. Jonesatlaw - 3/25/2000 2:59:34 PM Limited number of cities? Yes. But I can assure you that any German or Japanese can walk in any part of any German or Japanese city without problems. 713. Raskolnikov - 3/25/2000 3:00:35 PM To an extent, I think Pseudo is just playing devil's advocate to puncture common American sanctimoniousness about the US being a "free country". I think there is some value there, but most of the restrictions he names are piddling, inconsequential things like sodomy laws, which have a symbolic value but hardly restrict anyone from "doing what they want to do". I also think he overestimates American taste when he says that we don't want to live in McBurbs. This is a country where there are more McDonald's than any other restaurant. I will reiterate that Americans are generally able to live in any sort of housing and architectural style they choose, in almost any type of residential area, for less than what choosing such residences would cost in a European metropolitan area. It is just that it isn't worth the trade-offs to most Americans. 714. Raskolnikov - 3/25/2000 3:01:45 PM While Pseudo has mentioned that the US has greater economic freedom, I think it is worth emphasizing exactly how important that is. Our high wages and economic standard of living gives us the freedom to do a lot of things and buy a lot of things that just can't be done as cheaply in Europe. 715. pseudoerasmus - 3/25/2000 3:07:22 PM #712 716. Raskolnikov - 3/25/2000 3:07:50 PM I lived in West Philly for a summer. After getting mugged, I was scared shitless walking home alone late at night. And my wife *never* walks alone at night, even in our very safe suburb - it is too ingrained from her years living near the University of Minnesota, and Minneapolis has an extremely low crime rate compared to other US cities. I completely concede Pseudo's point in this regard. 717. Seguine - 3/25/2000 3:08:29 PM CalGal: "But again, what is this association of PC expectations with freedom?" 718. Seguine - 3/25/2000 3:09:45 PM Jones: "You find the American lifestyle stultifying and boring. Fair enough. However, it is the result of free choices of Americans." 719. Seguine - 3/25/2000 3:10:53 PM PE: "For example, people in the USA are prone to suspecting others of sexual deviancy." 720. Seguine - 3/25/2000 3:11:10 PM Dan: “Taxes can play a role [in middle-class flight] (and has in Philly), too.” 721. Jonesatlaw - 3/25/2000 3:18:51 PM Seguine- The last time I saw a mother spank her child in public was about two days ago in a store. Next? 722. pseudoerasmus - 3/25/2000 3:19:38 PM #713 723. pseudoerasmus - 3/25/2000 3:20:30 PM Raskolnikov: 724. Raskolnikov - 3/25/2000 3:20:33 PM Seguine: "But it makes perfect sense. Other Americans’ choices constrain mine." 725. pseudoerasmus - 3/25/2000 3:20:52 PM In the USA, bars close at 2AM! 726. pseudoerasmus - 3/25/2000 3:23:15 PM #714 727. DaveM - 3/25/2000 3:24:42 PM I have enjoyed reading this discussion. 728. Jonesatlaw - 3/25/2000 3:25:14 PM Pseudo- Not in New York, -at least it used to be 4AM. 729. pseudoerasmus - 3/25/2000 3:25:17 PM #719 730. pseudoerasmus - 3/25/2000 3:28:05 PM Meyer, you appear to be some of lower-20-something whose experience outside the USA (and the less PC environs) appears to be brief girlie-chasing excursions in Costa Rica or other havens for Northamerican leftie granola gits. 731. Raskolnikov - 3/25/2000 3:31:25 PM Pseudo: 732. DaveM - 3/25/2000 3:33:07 PM Pseudo, you've pegged me exactly. Actually, my mommy and daddy sent me to Europe once too. 733. JayAckroyd - 3/25/2000 3:33:34 PM 711 734. pseudoerasmus - 3/25/2000 3:36:39 PM Jay, there are some parts of Paris and London, such as the banlieus outside Paris, which can be unsafe. But that's about it. You certainly can't compare inner city USA with the vast majority of European cities. 735. DaveM - 3/25/2000 3:36:56 PM Pseudo - 736. pseudoerasmus - 3/25/2000 3:38:22 PM Raskolnikov: The gap between European and American car ownership rates can't be that great, if it's there at all. What you say about housing is true on average. 737. DaveM - 3/25/2000 3:39:02 PM "Freedom" in this discussion really does appear to be nothing more than congruence with one's personal desires. 738. pseudoerasmus - 3/25/2000 3:39:17 PM #727 739. TabouliJones - 3/25/2000 3:39:52 PM 740. Raskolnikov - 3/25/2000 3:39:54 PM "I never said car ownership restricts freedom. I'm saying that the lack of transport options restricts freedom of choice to driving and driving and more driving. " 741. pseudoerasmus - 3/25/2000 3:41:03 PM # 737 742. pseudoerasmus - 3/25/2000 3:43:28 PM Raskolnikov: Yes, London pubs close early, but the nightclubs don't. Anyway, London and the UK are not the extent of Western Europe. 743. pseudoerasmus - 3/25/2000 3:45:38 PM # 735 744. pseudoerasmus - 3/25/2000 3:46:08 PM Excuse me. I've been to Kansas City, whose outskirts contained some of the most oppressive suburban sprawl I've ever seen. 745. pseudoerasmus - 3/25/2000 3:48:11 PM But basically, I am making a "revealed preference" argument. While I agree that these preferences are somewhat distorted by factors you mention, I would argue that apparant European preferences are even more distorted by the comparative lack of new land to develop, and the higher cost of land. 746. Raskolnikov - 3/25/2000 3:48:18 PM "Most of Western Europe has a lower per capita income than the USA, but not terribly lower. And the distribution of income is better, so that workers in manufacturing, for example, get something like twice the wages of comparable American workers." 747. pseudoerasmus - 3/25/2000 3:50:17 PM If I'm responding with less detail and less elaboration than before, it's because it's difficult to do so when you have 20 people to respond to. 748. Raskolnikov - 3/25/2000 3:52:06 PM "What are we talking about? Housing or cars? The remarks to which you responded were about cars." 749. Raskolnikov - 3/25/2000 3:53:20 PM I'll make it easier and bow out for now. I initially logged on to download some stuff I need for my Oscar party tomorrow, and hadn't intended to get caught up in this argument again. 750. Jonesatlaw - 3/25/2000 4:05:16 PM Is this the case that you were blithering about Pseudo? The prosecution of parents for nude photos of their child? 751. Jonesatlaw - 3/25/2000 4:07:44 PM The last 13 photographs are of the child alone, in the nude, 752. Jonesatlaw - 3/25/2000 4:08:40 PM toys 753. pseudoerasmus - 3/25/2000 4:08:54 PM No, that's not the case. The case I had in mind was very recent, involving an amateur photographer woman and her daughter. I'm trying to recall the name and find the citation. 754. pseudoerasmus - 3/25/2000 4:13:27 PM Yes, I'm sure it would be appealed, but the very fact that it must be appealed at all is awful. 755. Jonesatlaw - 3/25/2000 4:30:49 PM Pseudo- are you refering to the woman who photographed her daughter in the shower? The child was 8 years old and "rinsing" off her gentials in the photo. 756. pseudoerasmus - 3/25/2000 4:36:19 PM That may be the one. What's her name? 757. CalGal - 3/25/2000 4:56:27 PM Seguine, 758. Seguine - 3/25/2000 6:13:31 PM PE: "The case I had in mind was very recent, involving an amateur photographer woman and her daughter. I'm trying to recall the name and find the citation." 759. TabouliJones - 3/25/2000 6:13:39 PM I agree with Rask, that perhaps PE's argument is a reaction against the more bombastic form of American patriotism, which tends to regard the U.S. as the absolute paragon of free thinking societies and tends to devolve into an Amurrica love it or leave it mentality. Certainly such knee-jerk patriotism is a rather odious mind set that warrants whatever vitriole gets thrown its way. I will, however, leave it up to the Americans here to let me know how pervasive that mentality actually is in the U.S.; although, personally, I doubt it is all that rampant. 760. Seguine - 3/25/2000 6:13:43 PM (Of course, they publicly beat their kids up side of the head in West Philly, but that's only because Social Services there can't be counted on to do anything effective in far worse situations...) 761. Seguine - 3/25/2000 6:15:40 PM 760 was addressed to Jonesatlaw 762. MsIvoryTower - 3/25/2000 6:29:15 PM Jones Message # 750: 763. Seguine - 3/25/2000 6:31:03 PM Seguine: "But it makes perfect sense. Other Americans’ choices constrain mine." 764. MsIvoryTower - 3/25/2000 6:31:54 PM Btw, I'm having a hard time connecting this endless conversation about pseudo-american freedoms with the gist of this thread. 765. MsIvoryTower - 3/25/2000 6:32:34 PM aesthetics, that is.... 766. Seguine - 3/25/2000 6:39:17 PM MsIT: "I'm always suspicious when I read about these parents who 'innocently' are caught by some nasty ole' pornography statutes." 767. Seguine - 3/25/2000 6:40:31 PM (sorry, cross-post) 768. MsIvoryTower - 3/25/2000 6:42:01 PM Seguine 769. MsIvoryTower - 3/25/2000 6:50:38 PM Btw Seguine 770. pseudoerasmus - 3/25/2000 7:07:19 PM Who the hell is talking about child pornography? 771. MsIvoryTower - 3/25/2000 7:20:09 PM I think I'm going to declare a moratorium on hysterical anecdotes in this thread. 772. pseudoerasmus - 3/25/2000 7:34:20 PM I'm always suspicious when I read about these parents who 'innocently' are caught by some nasty ole' pornography statutes. 773. CalGal - 3/25/2000 7:39:01 PM Yes, it's becoming almost dangerous these days to say that you disapprove of pedophiles in certain circles. It's quite the trend in more educated and urban populations to dismiss such concerns as McCarthyism. 774. Raskolnikov - 3/25/2000 7:49:28 PM "Hollywood movies. Why does Hollywood come to my town to film? Because this place represents an ideal. Most people simply have no access to it." 775. profemeritus - 3/25/2000 7:53:06 PM MsIT 776. MsIvoryTower - 3/25/2000 9:03:10 PM ProfE 777. Seguine - 3/25/2000 9:27:31 PM MsIT: "It's quite the trend in more educated and urban populations to dismiss such concerns as McCarthyism." 778. Seguine - 3/25/2000 9:41:00 PM Rask: "How does this provide one scrap of evidence that the US has this problem more than other countries?" 779. MsIvoryTower - 3/25/2000 10:01:19 PM Message # 777 780. LadyChaos - 3/25/2000 11:29:14 PM MsIT, 781. Seguine - 3/25/2000 11:31:31 PM "Don't know if you deliberately switched our two comments" 782. Seguine - 3/25/2000 11:31:49 PM There are people in this country--some in positions of authority--who are so exercised by the threat of child abuse that they would question all manner of closeness, affection--even things like casual nudity in the home or parents sleeping in the same bed with young children--just to be sure nothing illicit might take place, or might be thought about, by anyone. 783. LadyChaos - 3/25/2000 11:31:49 PM I think they become national attention grabbers, and the stuff of rabble rousing, precisely because they happen rarely. 784. Stumbo - 3/26/2000 2:29:39 AM "I'm tempted to use the I word, but since you're Raskolnikov, I won't." 785. MsIvoryTower - 3/26/2000 9:28:41 AM LadyC and Seguine 786. MsIvoryTower - 3/26/2000 9:37:22 AM Mind you: anyone who messed with my children would not survive the period between my locating him and the date of his arraignment. 787. Seguine - 3/26/2000 10:57:46 AM MsedIT, 788. Seguine - 3/26/2000 11:05:54 AM On a different question of freedom brought up earlier: workplace sexual harassment laws. Frankly, I've found it much easier to function in the world since harassment became punishable. To the extent that men's freedom is curtailed by my desire not to be grabbed, yelled at, ogled, unfairly excluded, blackmailed, etc. on the job, I guess I have to say, from a purely partisan standpoint, tough shit. 789. MsIvoryTower - 3/26/2000 11:32:33 AM Seguine 790. MsIvoryTower - 3/26/2000 11:33:26 AM ...and exhibiting McCarthyism, that is.... 791. MsIvoryTower - 3/26/2000 11:36:14 AM Finally, Seguine, 792. AceofSpades - 3/26/2000 12:15:01 PM 793. TabouliJones - 3/26/2000 12:19:30 PM Barring any last minute deals, it looks like Judge Jackson will be giving his decision in the Microsoft case on Tuesday or Wednesday. It looks like he will be coming down hard on Microsoft; and he is probably leaning towards breaking up the company -- although he will probably hear arguments first about remedies before he makes that final decision. 794. TabouliJones - 3/26/2000 12:19:51 PM Not that MS is an angel, but its behaviour has not been as egregiously anti-competitive as the DOJ wants everyone to believe. Certainly, MS's current settlement offer is quite reasonable -- i.e. agreeing to stop certain restrictive licensing practices and agreeing not to tie IE to any of their future operating systems. 795. AceofSpades - 3/26/2000 12:27:39 PM 796. AceofSpades - 3/26/2000 12:31:34 PM 797. TabouliJones - 3/26/2000 12:34:13 PM 798. pseudoerasmus - 3/26/2000 12:38:44 PM Cosmopolitan cool? Yes, that surely describes Americans who affect knowledge of abroad without having it. 799. AceofSpades - 3/26/2000 12:39:06 PM 800. AceofSpades - 3/26/2000 12:40:41 PM 801. TabouliJones - 3/26/2000 12:47:47 PM 802. AceofSpades - 3/26/2000 12:56:13 PM 803. TabouliJones - 3/26/2000 1:03:52 PM 804. AceofSpades - 3/26/2000 1:06:29 PM 805. TabouliJones - 3/26/2000 1:12:55 PM Well, you are talking about the Chicago School which tends to oversate its arguments, yes. (Interestingly, Rober Bork, a famous member of that school, has taken Netscapes' side in this case.) However, Economides and Krugman are experts on the economic theory being used by the DOJ to buttress their case against MS, and both of them agree that the DOJ is over playing its hand. The theory underlying the DOJ's case implies the existence of market externalities which will perpetuate MS's dominance at the expense of consumers. I and others happen to think that theory is inapplicable to the MS case. 806. CalGal - 3/26/2000 1:16:51 PM Ms, 807. TabouliJones - 3/26/2000 1:19:55 PM 808. AceofSpades - 3/26/2000 1:21:12 PM 809. AceofSpades - 3/26/2000 1:25:36 PM 810. TabouliJones - 3/26/2000 1:36:15 PM Ace 811. AceofSpades - 3/26/2000 1:39:20 PM 812. MsIvoryTower - 3/26/2000 1:39:22 PM I thought it was being used to describe something else. 813. MsIvoryTower - 3/26/2000 1:42:38 PM And Calgal, I already have the language attack dog on my heals, did you have to post the damn error (who's versus whose) again? 814. MsIvoryTower - 3/26/2000 1:46:28 PM jaysus 815. TabouliJones - 3/26/2000 1:46:34 PM 816. TabouliJones - 3/26/2000 1:52:36 PM 817. PincherMartin - 3/26/2000 4:17:32 PM Great discussion. 818. PincherMartin - 3/26/2000 4:58:19 PM Tabouli Jones -- 819. TabouliJones - 3/26/2000 5:02:35 PM 820. Seguine - 3/26/2000 10:02:30 PM IT: "Your last post clearly demonstrates your selective concerns about who's freedoms are being curtailed, and why." 821. ButterfieldSwire - 3/27/2000 5:31:15 AM Raskolnikov asked -- 822. Raskolnikov - 3/27/2000 11:09:20 AM Butter: Thanks - that is about where my hunch was. 823. CalGal - 3/27/2000 11:39:07 AM How is income calculated, by tax returns? There are a lot more part-time workers in the US, aren't there? 824. Jonesatlaw - 3/27/2000 12:24:05 PM Seguine- are you focusing on children who are molested or abused by family members or non family members? Experience shows that children are more likely to be molested by family members than strangers. The very nature of the crime makes it difficult to dectect and to prove in court. Do I think that children are safer now that there is greater awareness of child abuse in general? Yes. 825. Absensia - 3/27/2000 12:36:32 PM Jonesatlaw, 826. Raskolnikov - 3/27/2000 12:37:37 PM Non-cash income (Food stamps, housing, etc.) could also tilt the comparison differently. I have no clue about whether Europe uses voucher-style welfare programs more than the US does. 827. Jonesatlaw - 3/27/2000 12:42:12 PM Absensia- I agree with you regarding custody cases and false accusations. Most of the folk who end up trying to sort this stuff out are woefully unprepared for the task. 828. ButterfieldSwire - 3/27/2000 9:51:16 PM Trying to generate a correct and complete distribution of income levels are of course going to be subject to a lot of caveats. But the state of knowledge, such as it is, can probaly be found in Gottschalk and Smeeding. Read it your self if your interested. 829. CalGal - 3/27/2000 10:09:31 PM That link hung my browser--and I asked about it in The Slow Thread, which is probably better suited for this one topic. 830. PincherMartin - 3/27/2000 10:17:07 PM Butter -- 831. wonkers2 - 3/27/2000 10:46:47 PM Here's a second to Pincher's recommendation of Ferguson's High Stakes. It's the best book I've read on the computer industry. The New New Thing by Michael Stewart is also good--more entertaining but less informative. 832. LadyChaos - 3/29/2000 5:07:23 PM I was pleased to see that one of our local Public Defenders, Harvey Sepler (who teaches occasionally as an adjunct here at UM Law), just won his case before the Supreme Court. In a 9-0 decision, the Court ruled that there can be no "firearms exception" to the probable cause requirement of the 4th Amendment. 833. PincherMartin - 3/29/2000 7:34:11 PM A question for you Lawyers: what consequence do U.K. libel laws have on Americans? In particular, why would an American academic be compelled to attend a U.K. proceedings for remarks she made on a British academic? 835. LadyChaos - 3/30/2000 11:12:46 PM When, oh when, are those morons in the Senate going to stop trying to amend the Bill of Rights to outlaw flag desecration? 836. Dantheman - 3/31/2000 8:54:53 AM 837. Dusty - 3/31/2000 10:29:08 AM LadyChaos 838. PelleNilsson - 3/31/2000 3:13:22 PM Great to see you around again, Dusty! 839. Dusty - 3/31/2000 3:22:16 PM Thanks, Pelle, I hope I can stay. 840. LadyChaos - 3/31/2000 6:07:12 PM Dusty, 841. Candide - 3/31/2000 6:18:19 PM PincherMartin 834 842. LadyChaos - 3/31/2000 6:39:10 PM Pinchermartin, 843. wonkers2 - 4/1/2000 9:58:36 AM British Internet Provider to Pay Physicist Who Says E-Bulletin Board Libeled Him by Sarah Lyall NYT 4-4 844. wonkers2 - 4/1/2000 10:08:35 AM It is unclear what implications the settlement will have for companies based in the U.S., where Internet providers are held to be no more liable for the messages posted on them than the post office is for the contents of letters it delivers, or a telephone company for conversations it carries. First Amendment lawyers said that American companies would probabley be at risk only if they had physical assets like office buildings in Britain. 845. wonkers2 - 4/1/2000 10:20:34 AM It was on Jan 12, 1997, that the first message at issue in the case appeared, as part of the discussion in a news group carried by Demon's news servers. News groups are freewheeling discussion groups on every imaginable subject, whose subscribers can post messages as they would on a bulletin board, to be read and commented on by others. They are one of the original services provided by the Internet and are precious forums for those who regard the Internet as thefinal frontier of free speech. Discussions can be extremely heated, and not infrequently descend into personal attacks, [except on the most civilized forums such as The MOTE.] 846. wonkers2 - 4/1/2000 10:33:44 AM That made Mr. Godfrey, a familiar figure in various news groups, decidedly unpopular with the Internet's free speech champions, who then began posting further provicative messages about him, calling him a pedophile and a necrophile, among other things. Godfrey responded with further lawsuits against the people posting the messages. More than half a dozen of them settled, for amounts in the $15,000 range. 847. MsIvoryTower - 4/1/2000 1:04:12 PM PM 848. MsIvoryTower - 4/1/2000 1:05:43 PM Lady C 849. MsIvoryTower - 4/1/2000 1:09:44 PM With respect to the case Wonkers referenced, 850. PincherMartin - 4/1/2000 5:01:58 PM MsIT, Wonkers, and Lady Chaos -- 851. dusty - 4/1/2000 5:56:33 PM Lady Chaos 852. MsIvoryTower - 4/1/2000 10:34:39 PM On another note... 853. TabouliJones - 4/1/2000 10:38:45 PM 854. MsIvoryTower - 4/1/2000 10:59:41 PM Tabouli 855. SpenceMirrlees - 4/2/2000 12:19:47 AM I'm traveling right now. I will comment when I get back on Sunday. 856. dusty - 4/2/2000 12:04:46 PM I just finished sending in my census form. 857. wonkers2 - 4/2/2000 12:05:50 PM THE LEGAL MIND? 858. wonkers2 - 4/2/2000 12:13:20 PM "Notwithstanding the above, buttocks shall not include the leg, the hamstring muscle below the gluteal fold, the tensor fasciae latae muscle or any of the above-described portion of the human body that is between either the left inside perpendicular line and the left outside perpendicular line or the right inside perpendicular line and the right outside perpendicular line. For the purpose of the previous sentence the left inside perpendicular line shall be an imaginary line on the left side of the anus that is perpendiuclar to the ground and to the horizontal lines described above and that is one-third the distance from the anus to the left outside line, and the right inside perpendicular line shall be an imaginary line on the right side of the anus that is perpenddicular to the ground and to the horizontal lines described above and that is one-third of the distance from the anus to the right outside line. (The above description can generally be described as covering one-third of the buttocks centered over the cleavage for the length of the cleavage.)" 859. MsIvoryTower - 4/2/2000 12:54:29 PM Dusty, 860. MsIvoryTower - 4/2/2000 12:58:51 PM Dusty 861. MsIvoryTower - 4/2/2000 1:03:37 PM Actually, as I think on it, a signature of truthfulness would raise your culpability from negligence to knowing, and for any criminal offense, that could mean a significant difference in sentence. In civil law (torts), I think it would negate any affirmative defense against potential fines, regardless how large. 862. MsIvoryTower - 4/2/2000 1:04:03 PM Or damages, for that matter. 863. dusty - 4/2/2000 1:11:40 PM MSit 864. Absensia - 4/2/2000 1:16:26 PM Wonkers, 865. MsIvoryTower - 4/2/2000 1:21:39 PM Absensia 866. wonkers2 - 4/2/2000 5:33:05 PM Msit, Nudity is indecent in the eye of the beholder! 867. LadyChaos - 4/2/2000 8:03:53 PM MsIT, 868. MsIvoryTower - 4/2/2000 8:34:28 PM LadyC 869. Dantheman - 4/3/2000 9:07:23 AM LadyChaos, 870. LadyChaos - 4/3/2000 9:16:07 AM Thanks to all for helping me exercise my debate skills in this forum. 871. 109109 - 4/3/2000 11:58:06 AM To Cart, on the Echols case (from Movies) 872. 109109 - 4/3/2000 11:58:29 AM The substantial evidence of Echols's guilt is as follows. Anthony and Narlene Hollingsworth were well acquainted with Echols and testified that they saw Echols and his girlfriend, Domini Teer, walking after 9:30 on the night of the murders near the Blue Beacon Truck Stop, which is near Robin Hood woods where the bodies were found. The witnesses testified that Echols had on a dark-colored shirt and that his clothes were dirty. This evidence placed Echols in dirty clothes near the scene at a time close to the murders. 873. 109109 - 4/3/2000 11:58:50 AM Lisa Sakevicius, a criminalist from the State Crime Laboratory, testified that she compared fibers found on the victim's clothes with clothing found in Echols's home, and the fibers were microscopically similar.
Irv:
There is a huge, huge difference between punishment and discipline. Positive reinforcement for positive behavior - negative consequences for negative behavior. That, and clear boundaries, is what teaches a kid discipline.
cop pulling over a drunk driver and citing them for DUI: student being observed getting high by school authorities and being cut from the team as a result.
I don't have a problem with that. No one's privacy is violated; no one is discriminated against simply because they stand up for their constitutional rights; the punishment is correctly applied. What I do have a problem with is :
cops randomly stopping and testing drivers without probable cause: schools randomly invading the privacy of their students without probable cause.
And I think it's the same problem most other people have as well.
Now it's my turn to say Exactly.
PS--in my window it's showing that the sidebar contents is in my post, but I'm posting anyway. We'll see what happens.
283. Absensia - 2/27/00 5:28:44 AM
Home
Posts per page
Go To Mote #
Rules of Engagement
Edit your profile data.
Thread List:
Arts and Music
Books
Chess
Current Events
Home and Garden
How's the Weather?
International
Language
Movies/Television
New Thread and Feature Suggestions
Poetry
Politics
PP's Sports Bar
Stories, Tall and Short
Technical Issues
The Inferno
The Legal Corner
The Mote Cafe
The Quiz Thread
The Slow Thread (SciTech, Econ, etc)
The Temple of Doom: Spiritual Issues
Try the Mote
Computers never lie, Arky.
A-5:
This isn't hard. Participation in school sports is not required. We're not going to "solve" this here, since you and I have very different ideas about what is and is not within a school's rights to require of their athletes. That is for the courts to decide. And at least one agrees with moi, huh?
School sports have always been a refuge for wayward kids with a little talent and some drive - I'd never argue that. When I was a PO, that was always on the agenda. It is my belief, however, that school sports hold nowhere near the prestige they once did precisely because, just as in pro and college sports, all that seemingly matters is on-field performance. I happen to feel that, while any sacrifice of privacy makes me uncomfortable, in this instance it's worth it.
In Ca. the police do randomly stop cars and check people for drugs and alcohol. There called sobriety checkpoints. I used to be terrified of them.
Abs:
A $3 pee test distinguishes between "Poppy seeds" and actual THC.
ee, they've been upheld here too, in WA
required.
required.
There is a huge, huge difference between punishment and discipline. Positive reinforcement for positive behavior - negative consequences for negative behavior. That, and clear boundaries, is what teaches a kid discipline.
I have no problem with that. In fact, I agree. Where we differ is what constitutes appropriate punishment. I do not believe that cutting kids off from adult-supervised activities is appropriate punishment, as these activities are the ones most likely to help them find themselves.
Whatever. My point was that it doesn't take a real expensive drug test to accurately test for drugs.
Most assuredly. However, contrary to what you seem to want to imply, kids do not for the most part join sports for the positive adult influence and interaction. They join because they enjoy it, and to get chicks.
Hope this isn't a double, I just got some weird error message about a timeout.
I missed this part.
Joezan, are you saying that the reason you support randomly drug-testing grade school athletes is because it will cause sports programs to be more prestigious again? It's 'worth it' to violate students' privacy and turn at-risk students away from one of the best support systems around because of that?
Dude, are you serious?
A-5:
Error number: -2147217871 - [Microsoft][ODBC SQL Server Driver]Timeout
expired
That one?
You are asserting your definition of what constitutes the right to privacy as the correct one. I am saying that it is not so cut and dry. As was mentioned earlier, there are all kinds of jobs one may hold where mandatory drug testing is part of the contract. Does that mean anything to you? You enter into this contract, even though you are uncomfortable having to pee in a cup every month....why?
Because the benefit exceeds the level of discomfort. Absolutely no difference. No one is forcing you to work there, and there is no one forcing a kid to play school sports.
Why kids join sports programs is irrelevant. I am concerned with the benefits kids can derive from the programs, which can help straighten out their lives. Sure, it won't work for all kids. But if the sports programs help any kids, it would be worth it, wouldn't it?
A-5:
Joezan, are you saying that the reason you support randomly drug-testing grade school athletes is because it will cause sports
programs to be more prestigious again? It's 'worth it' to violate students' privacy and turn at-risk students away from one of the best support systems around because of that?
Let me make this simple. When any screw-up can get onto the team, and stay there while he "works out his problems", the rest of the team suffers. Maybe I'm a socialist, A-5, but I believe in the greater good. Student athletes are role models. It is not expectiong too much of any one of them that they don't do drugs, make halfway decent grades, and stay out of trouble.
Irv:
I have never had to ground my daughter (she's only just turned 8). However, I suspect that someday I will have to, assuming she turns out to be a normal teen. When the time comes, she will not spend whatever time she's grounded locked in her room with no human contact. But neither will she be going out and enjoying her social life.
Let me ask you this: Do you believe that schools should even have rules against their athletes using illegal drugs?
If so, what should be the consequence for breaking that rule?
Many schools have such rules..it's in the "code of conduct" and includes drinking, cheating, etc..but they don't do random searches to look for it.
You're now arguing that a work contract is a good analogy for high school sports?
The computer ate a long post of mine on drug tests. I'll recap:
Drug tests aren't cheap at all, even the ones that are highly suspect in their accuracy.
onto the team, and stay there while he "works out his
problems", the rest of the team suffers. Maybe I'm a
socialist, A-5, but I believe in the greater good. Student
athletes are role models. It is not expectiong too much of
any one of them that they don't do drugs, make halfway
decent grades, and stay out of trouble.
I simply can't agree with your apparent position that sports are only for the good kids. I see sports as an excellent opportunity to bring the kids with troubles into the mainstream. I guess we have different views of what school sports are for. And I just don't believe in giving up on the kids with problems.
I've never had to ground my kids either (they're 10 and 14), but if I did, I would allow them to continue adult-supervised sports activities.
I believe schools should have rules about drug use in the schools, but that there shouldn't be separate rules for athletes. I believe the schools should provide guidance and help for kids in trouble, and not just cut them off.
If a kid is smoking a joint at football practice, yes, I think he should be kicked off the team, and enrolled in a drug-help program. Obviously, his problem is much greater than one the school can help with. The same goes for any non-athletes in the school in the same situation.
But if a kid has a drug test which shows he smoked a joint at a party last Friday night, no, I don't think he should be kicked off the team.
The law which started this discussion (after Arky's initial question) related to all school-sponsored activities. I don't think the kids in the science club, the school newspaper, the Bible study club, etc. should be subjected to random drug tests, and I don't think it's right to subject student athletes to them either.
Irv:
Now, this may be getting a little off track, but I mentioned earlier that the problem my coach friend had with giving a kid another chance (I didn't mention that that was what he was responding to - my plea to give a kid who'd been caught smoking pot another chance) was exactly how the other kids on the team saw the situation - the squeaky wheel getting the oil. You may think my views on discipline are harsh, but they are in fact grounded in some very sound research. Have you ever heard of the Positive Peer Culture? This is a treatment modality wherein the onus is placed on every kid to act positively, to be a positive role model in his group of 8 - 12 kids, and to positively correct (or, in PPC parlance, "Check") the negative behaviors of his group members. In this program, a kid can have absolutely sterling behavior and not advance in his privileges unless he proves himself to be a positive leader. We expect and receive this from kids who have multiple felonies. It is amazing how quickly a kid can change from being a negative leader to being a positive leader, and how quickly that one kid's decision to be a positive leader can change the attitudes of the other kids in his group. we underestimate no kid, and consider attitudes such as yours heresy.
I would be boring you to death if I explained the theory behind why this method works so well, but suffice to say that my facility (the only detention facility in this state to use the PPC), within 5 years of adopting this treatment method, has become the model for this state, and is now becoming the model for the country.
Now, a school, of course, is not a detention center. But the point is that if a kid wants something bad enough, he can make some astounding changes. But you have to have standards, and you have to stick to them. In order for one of our kids to achieve Upper Level status, he's got top demonstrate Upper Level behavior and attitude for a full week - no exceptions, no negotiations. He is then given, along with his extra privileges, a certificate to hang on his door and a letter to send to his parents. He is the BMOC.
And that is the way it needs to be. They're kids, for Pete's sake. If they don't learn to play by the rules now, they will not do so as adults.
I've been involved in education for more than 20 years, and I'm very familiar with various theories of discipline. My own practices are also grounded in solid research.
Your PPC sounds great, but I have one main reservation. The kids we're talking about are not multiple felony offenders, but simply those who need a lift to get past a rough spot in their lives. Kicking them off a sports team because they aren't perfect will not help, but will reinforce whatever is causing their problems. We're talking about regular kids here, not the sort who end up in detention centers, at which point they need something more radical.
My point, which you haven't really addressed, is the beneficial effects of team sports and proper adult coaching on an individual, particularly as opposed to depriving those kids who need it most of that opportunity.
Is your position then that we should kick these kids off the school team, let their problems get really bad, and then send them to a detention center where they can learn PPC?
If they don't learn to play by the rules now, they will not do so as adults.
Did you play by all the rules as a kid? Never smoked a joint? Never got drunk? Never cut a class? Never did anything bad? If so, you are a rare example. I don't expect my own kids to be perfect. Hell, I sure wasn't.
Irv:
Hell no, I didn't. But I was corrected - never coddled -when I was caught breaking the rules. And, FWIW, I was, myself - a phenomenal outfielder and batter as a kid - thrown off the team in 10th grade for just such behavior. I mean, after a .400 year in JV I reported for varsity tryouts. The assistant coach took one look at me and said, Joezan, get the hell off my field. Simple as that. I didn't question him - I knew I'd f---ed up big time. I had to find my glory in the senior Little League and Babe Ruth League.
There's a big difference between "coddling" kids, and helping them develop their own discipline, which is a part of growing up. I'm all for instilling good qualities in kids, but it is a process, and kids don't suddenly show up as fully-formed individuals. They need guidance and support from adults.
Irv:
Is your position then that we should kick these kids off the school team, let their problems get really bad, and then send them to a detention center where they can learn PPC?
Please. As I said earlier, not only is the kid's drug use a negative influence on his team members, but the time and attention he takes from his team members, who may have problems not of their own making, is a serious distraction. Please don't get all sappy with this "football was the only positive thing in his life" crap. There are many, many options for a kid, in school and out, if he really wants to deal with his problems.
That said, all school sports programs I know of have a requirement that the athlete maintain decent grades. Standards - you gotta have them. Suppose you have two kids on your HS football team, one a drug user and the other a kid who's had to struggle all through school to make passing grades because he just is not too bright. He slacks off a little and pulls three D's one semester - boom! he's off the team. Meantime, his teammate the user drops positive, and he's given counseling and allowed to stay on the team. Where the hell is the justice there?
A-5:
IRV>Did you play by all the rules as a kid?
JOEZAN>Hell no, I didn't.
You figure it out, wise guy.
But someone who smokes a little weed..and only rarely..seems a lot different than someone shooting up between classes, but either would be ousted, right?
Abs:
Every time I've seen that snowboarder explain that incident, he does so with tongue firmly planted in cheek, and a big, wide smile. He is known far and wide as a doper.
And I really have to get going to bed -it's been, uh...fun. But it's 3am here. Talk to you guys later...
I know that..that's the best part.
It's only midnight here..but I need to go as well. G'night.
Please don't get all sappy with this "football was the only positive thing in his life" crap. There are many, many options for a kid, in school and out, if he really wants to deal with his problems.
Nobody is getting sappy. And I'm not talking about a kid looking for help. I simply think sports is a positive influence, and I'd hate to take it away from the kids who need it most.
I don't see the relevance to this discussion of a minimum academic standards requirement. If a kid isn't making it in school, perhaps he should repeat the grade. But that has no relevance to a kid who is getting passing grades, and for whom sports may be the best way to learn some self-deiscipline.
I too wonder about "drug user." Either a kid is experimenting a bit, in which case I wouldn't want to see him made an outcast, but rather given guidance, or else he's a real drug user, in which case he's better off in a drug treatment program than in school.
negative influence on his team members, but the time
and attention he takes from his team members, who may
have problems not of their own making, is a serious
distraction.
You know it will be fun.
Might I remind Zan that school is a compulsory experience for children. Not only is it compulsory, but children don't get to shop around much to find the school with the policies and approaches that most suits their personal standards.
Even though extra-curricular activities are not mandatory, kids have very few opportunities to develop alternative possibilities (unless their parents are financially well-off) because their day is constricted at the same place, mandatorily.
Private sports/event clubs in Texas are very expensive, running into the thousands of dollars yearly for participation. School clubs are available for all children, regardless of their SES, and in this regard, are really the only option for most.
Therefore the comparison to work environments is a specious one; there are many work alternatives open to people, even with fewer skills. If they object to a drug testing policy, they don't have to work for that employer. It is, somewhat of a free market, with substitutes available.
As I said before, I am opposed to allowing random drug testing for extra-curricular activities in schools. There are prefectly acceptable means already available to schools to address drug use by students, and this is simply one more way schools arbitrarily trample on the rights of children to their privacy, and to their protection of person.
My objection is to the random nature of the testing. Kids should test clean to get in, and then know that they'll be tested weekly (preferably right after the weekend). School programs are voluntary, and the kids can know up front what the rules are. I see no real difference between this and booting a kid off the team in the event that the drugs are found in their locker.
As Joe mentioned, extracurricular activities are subject to an entire host of restrictions that kids know about--grades being a primary case in point. Yet a "troubled" child who is using drugs is just as likely to be ineligible for grades as they are for drug use--so why is it any worse for them to be denied sports for drug use (which is criminal) than school work (penalized for bad grades)?
If a community needs a means of handling its troubled kids, then they can make that a separate program--in fact, they can make participation in the program mandatory for kids who get caught using drugs.
Mind you, I do see problems with the way we handle children's constitutional rights in this country. I have problems with the fact that the kid's locker can be searched nearly on a whim and then turned over to the cops. And it goes without saying that I don't think the results of the tests should be turned over to the police.
What gripes me is the political side of the issue. The so-called "conservatives" who purport to be so committed to personal freedom and an absence of governmental interference and "regulation" are, in general, supporting this gross invasion of privacy without a semblance of probable cause.
MsIT:
Therefore the comparison to work environments is a specious one; there are many work alternatives open to people, even with fewer
skills.
No, the comparison is dead on, Ms. It's about choice. If you don't like the policy, you don't have to work there. Likewise, you don't have to be on the school sports team (no one is advocating throwing the kid out of school).
It is, somewhat of a free market, with substitutes available.
Exactly. There is nothing preventing a kid from joining a non-school sports team, or organizing games with his friends, or, for Pete's sake, joining the midnight basketball league.
Reading this exchange, I'm reminded that the core issue here is a matter of legal rights, and whether we think its fine to treat children the way we would not agree to be treated as adults.
Of course it is - we have curfews, we don't let kids drink liquor or drive or vote till a certain age, etc. But you're right. It depends on one's personal view of how much freedom kids ought to be allowed, and, in the larger view, what the community's view is.
...back later. I'm off to church.
The comparison is not dead on. It is specious. There is no comparison between a voluntary association in a work environment and a closed-system like that forced on children in schools.
The rationale behind curtailing such freedoms is that we don't treat children as fully responsible in the eyes of the law, and thus, have little recourse but to constrain activities that could harm the community at large. However, I think curfews are thinly supported, even by this rationale.
Random drug testing in schools, to participate in after-school activities is not associated with the protection of any community-wide interests.
community interests=public benefit/welfare.
And the last sentence is my opinion only (I think this should be a given, but in case anyone thinks I speak for the world, I clarify for them).
I've just read over this debate again and realized I sounded a bit harsh in places. If I offended anyone you have my apologies - I respect everyone's view who's posted on this issue, and didn't mean to belittle any of those views.
One thing I did want to mention - because it wasn't made clear in my posts about the Positive Peer Culture (PPC) - is that this is not a program which is intended solely for use in a correctional or reformatory milieu. There are, in fact, many HSs and JrHSs which have had great success using it. The program's great drawback, though, happens to be its drastically decreased effectiveness in groups of more than 12 kids. It is therefore used, in schools, almost exclusively in special ed classes.
Note to Irv:
One of the bases of the PPC is that in today's youth culture kids are much more concerned with and affected by their peer group, and more thoroughly dismissive of adult advice or attempts to influence them, than they were even as - cough - recently as when you or I were teens. I did not intend to dismiss the influence you or any concerned coach may have on the choices a kid makes, but it's been my experience that one's chances of accomplishing this are much greater, nowadays, when you realize that in most cases you've got to use the kid's peers to effect any real change.
I posted this in the Cafe and then Irving suggested that I post it here so voila
" I would like a discussion about mandatory sentencing but have not
initiated it for two reasons. I have no legal knowledge and there is
a running discussion in the legal thread that I don't want to
interrupt.
In Australia (Western Australia and the Northern territory) it is mainly Aboriginal kids who are the victims of mandatory sentencing. It is outrageous. Our ghastly little slime of a prime minister, John Howard, refuses to act although legal experts assert that there are ways in which he could act.
A fifteen year old given a year for stealing some art materials, hanged himself. Aboriginal kids are already on the cliff's edge. Their lack of self-esteem makes them particularly vulnerable.
As I read your discussion above I remembered the total misery of my days in boarding school. The feeling of violation and loss of identity. I was a middle class kid. Imagine what an Aboriginal kid from an outlying island feels like in an institution. Previous felonies by this enemy of society included stealing some biscuits on Christmas day when he was hungry.
The prime minister and the Northern territory Attorney General deny the link between his suicide and the prison sentence!
You're not talking about simple mandatory sentencing here are you? That is, you do x you get y. You're talking about mandatory punishment when more than one offence has been committed, I think. Can you clarify please.
Here I must be careful not to overstate my knowledge. Three convictions and the sentence is mandatory. No matter what the wish of the magistrate or judge, a stipulated sentence MUST be administered. (This is only in two states - or rather one state and a self-governing territory). Judges and magistrates from those zones have already protested saying that they felt brutalised and downgraded.
The reason that Howard is scared to alter the state/territory governments' laws is that he fears the red-neck rural-vote backlash at the next election. Labor has said that it will get rid of the laws if it gains power at the next federal election but none of us are holding our breath for that result.
"REPEAL THE MANDATORY SENTENCING BILL 1999
We, the undersigned Australians, request that the Northern Territory
Government repeal the Mandatory Sentencing of Juvenile Offenders
Bill 1999 immediately.
We believe the recent death of a fifteen year old Aboriginal boy
who was being detained in Darwin under the Territory's mandatory
sentencing laws was avoidable.
We believe the Mandatory Sentencing of Juvenile Offenders Bill 1999
is discriminatory, disrespectful, morally abhorrent, racist and
unjust. The Mandatory Sentencing Bill takes the responsibility for law
and order away from the local custodians of the law in each Aboriginal
community in the Territory.
Despite the Royal Commission's Inquiry into Aboriginal Deaths in
Custody and 339 recommendations later, Aboriginal people are still 14
times more likely to be imprisoned than non-Aboriginal Australians. In
the Northern Territory, 72.8 per cent of the prison population is
Aboriginal.
This compares with 33.1% in Western Australia and 21.6% in Queensland.
Does the Northern Territory Government genuinely believe that
mandatory sentencing laws are making a real difference?
There is a better way. We believe the boy's local community and family
could have undertaken a more appropriate action under customary law and
the young boy would probably still be alive today. We urge you to consider enabling and supporting Aboriginal people in the Northern Territory to implement their own laws as responsible, respectful and valid, ways of dealing with offensive law breaking behaviour.
I always thought of 'redneck' as describing American hicks in particular, It is, for some reason that probably won't stand inquiry, quite amusing for me to think of Australian rednecks.
Not to the judge in the Northern territory, but they were to the federal government. That is what I have been given to understand by legal commentators. I will try to find out more thoroughly.There is great sensitivity about the federal government interfering in any State's laws. The federal government overturned the Northern Territory's euthanasia bill with no problems.
According to reports the Northern Territory Attorney General was once an opponent of Mandatory Sentencing until he spotted its electoral advantages.
The Western Australian Government is particularly awful. Premier Court has come out with statements worthy of Haider. Western Australia has a long history of bad racial attitudes.
It's one of the cultural bonds between our two great nations.
Mandatory sentencing has a presence in the US as well, however, I don't know any state that applies it to juveniles. California was the leader in passing the "three strikes and you're out" principle to serving sentences. I'm not sure if its equivalent to the mandatory sentencing in effect in Australia, but it requires that a convicted felon(?) be sentenced to a minimum amount of years in jail upon his third conviction.
I know several states have been considering the same policy, as is Texas (if they haven't already adopted it). The main stumbling block is that it substantially raises the prison population when put in effect, requiring an expansion of infrastructure to support the policy.
I'm a bit horrified that the policy would be applied to children in Australia, as I said, I don't believe even California has gone that far.
Australia is so huge and the urban populations are so distant from much of this sort of thing. The Northern Territory contains a large number of people who are there to get rich as quickly as possible and to whom material property is the only value. The Aboriginal people in that area have been historically displaced and exploited.
A Western Australian book to read is "My Place" by Sally Morgan, in which the grandmother has her humiliating life story dragged out of her by the grand daughter who is the author.
I have to go out now. I hope that I accumulate a little more concrete information.
No country can be at peace with itself while these sorts of things are unresolved. Howard's thick-witted failure to appreciate the psychological benefit of the word "sorry" to a people who have been so degraded shows how far many Australians have to travel.
unjust.
This is quite interesting. I'm not referring to the particular case of the Aboriginal boy or to this particular Bill, but it has been argued that variable sentencing may be unjust in that it allows for discrimination and racism in sentencing. That is, you are more likely to get off with a light sentence for the same crime if you are middle class and white than if you're working class and black. I'm speaking from memory now but I think Stephen Jay Gould may have made this argument in The Mismeasure of Man.
I have read that too. In Australia it's the magistrates and judges who hate it most of all. They feel that they are being degraded into executioners and that all their expertise and experience has been trashed.
My only jury experience involved a Lebanese youth and drugs. Apart from a couple of Chinese people who interestingly were for a guilty verdict, the rest of us, plus a wonderful old character of a judge moved heaven and earth to find some loophole to let him off. Partly because of manipulated police evidence that stank no matter what the youth had done, but also because he was 23 and good looking and would have been sexually assaulted in prison, and because the stereotyping of Lebanese youths is so powerful in Sydney that we all felt obliged to lean a bit the other way. This wasn't said, but it was a sub-text to everything else.
Our ghastly little slime of a prime minister, John Howard
A brilliant and accurate characterization.
A5:
Aussie rednecks are virtually indistinguishable from the American variety, except the Aussies wear floppy leather hats while the Americans wear baseball caps advertising tractor companies, and the Aussies guzzle better beer. Otherwise, they look, think, and act the same, and both speak an indecipherable variety of the language. If either group could afford a planefare to meet the other (or if there were a road between the two countries on which they could drive their pickups) they would recognize each other as the blood brothers they are.
Msit:
I had mentioned to Candide recently in another thread the possibility that the Australians borrowed the three-strike rule from California. Would you happen to know if it originated there?
I know a number of Aussies, and to a man (and woman) they hate John Howard.
...So how the hell did he get elected?
The fathers of both girls, Mark Klaas and Mike Reynolds, either founded or were early advocates of the Three Strikes initiative (can't remember which right now). Klaas disassociated himself from the effort when he realized how many non-violent offenders would be affected by it. Reynolds stayed with it and wrote one of those nasty self-congratulatory books on it.
I'll see if I can dig something up.
Hey...not true, I once heard about something that happened in Washington state. But then, I live there.
We do have the three strikes law...it came about through an initiative voted in by the same good people who voted in the uniform cost
for car licenses tax and other tax "reforms" last Novemember.
Several year prior to that, the legislature enacted the "vending machine" sentencing act...you do x, and your prior history contains w
and r events then, according to the chart, you do yy amount of time. Has taken away most discretion trial judges have in sentencing.
Most states had some form of "habitual offender" law on their books well prior to the Three Strikes initiative. In fact, the first I heard of it was in the movie, Brubaker, when David Keith explained to Robert Redford why he was in jail for life, back in the early 80s. These laws were used mainly as bargaining tools--an offender would plead to a lesser charge to avoid the mandatory sentencing. From what I can tell, these laws are still on the books in most places, but they weren't mandated.
It was indeed Washington that started the ball rolling. They tried a three strikes initiative in 1992, but it failed--they were more successful in 1993, and became the first state to implement the law. California followed soon after in 1994. I imagine that the reason California's passage got more publicity (apart from the obvious reasons) was because of the Klaas and Reynolds murders, but that's just a guess. I believe the difference in the Three Strikes laws and the earlier laws on the books has to do with the mandate--Three Strikes is not a bargaining tool.
I believe that most of the data on Three Strikes has proven it to be ineffective at reducing crime.
Regarding juvenile offenders: yes, some percentage of juvenile crimes are covered under Three Strikes--murder, arson, rape, armed assault, armed theft, torture. I'm sure there's a list somewhere.
In California, the ballot initiative has been used to: restrict services for illegal aliens, vote out affirmative action, mandate imprisonment for three strikes, and set a limit on property taxes (the grandaddy of all initiatives, Prop 13).
In fact, that's an interesting question in and of itself--the current tendency of the public to vote in laws by majority rule. The courts ensure that the laws are at least constitutional, but they aren't able to toss them out on the grounds that they just don't make sense.
John Howard became leader of the Liberal party through pious chicanery, betrayal od colleagues "being there" and the fact that Alexander Downer who had been elected leader so lacked charisma that he was being cartooned as Winnie the Pooh singing 'tiddely pom'.
The Liberal/National coalition got elected because the media had done such a good job on Labor's prime minister Paul Keating that he was hated and envied and cut down like the tall poppy he was. Gough Whitlam supported and admired Keating. Keating was a stylish, self-educated urchin who was what some would describe as "Too clever by half".
I hope things are going well for you in law school. I have an oral argument round for advanced moot court in less than an hour, so I'll just say "Hi" for now.
I look forward to seeing your name as Editor in Chief at UT Law Review.
This week we've begun discussing Homicide in class; how it's classified into the various categories. Murder is the intentional killing of another human being with 'malice aforethought' under the common law. Modern statutory laws build on this and typically eliminate the 'malice aforethought' aspect (so very ambiguous) and insert instead,
'the killing of a human being with premeditated, willful, deliberateness'.
Like this isn't any less ambiguous.....
Anyway, the case law is chock full of child murder/abuse cases as examples of when there is murder in the first degree or 2nd degree.
Jaysus.
Good to see you! Come back and discuss some issues with us when you have some time. And good luck with Moot Court!
I'm laughing on the Law Review crack, like I don't have enough on my plate....
One quick thought. The best way to think of premeditation is that it is the absence of a heat of passion.
Got it?
See ya...
Well, the absence of passion could also apply to 'deliberate' - therein lies the potential ambiguity. If they both imply a similar, if not the same thing, then why would they be included as seperate terms in many statutes?
On the other hand, if legislatures did not intend for them to mean essentially the same thing, what is their definitional difference?
Catch my drift???
"Wilfull" and "deliberate" go more to the intent to kill. This is important because 1st degree murder is a "specific intent" crime. Likewise, killing someone in the heat of passion is still done with intent to kill, but without premeditation.
By contrast, so-called "depraved heart" murder (usually 2d degree murder) occurs from a malicious act which, while evidencing a reckless disregard for human life, may not constitute an intent to kill.
Agree that's how some jurisdictions interpret that language, but consider Pennsylvania, which has 1st degree murder as requiring "willful, deliberate and premeditated", but interprets any "intent to kill" as meaning those.
I thought "depraved heart" was in the 1st degree category...
I'm having a hard time with criminal law. The sentencing for various crimes seems completely illogical to me, and highly inconsistent.
Your example of a guy getting life for kiting checks is completely irrational in light of some of these cases on child murderers I've been reading.
You're a defense attorney? You'd need to toughen yourself for that, I'd think.
Thank you.
I don't know about the Pennsylvania statutes. Perhaps the difficulty is over the word "deliberate." It could go either to intent or to the absence of a heat of passion. It would depend on how court interpret the statute. Often, legislatures will "double-up" synonyms in statutes in order to assure that the statutes are correctly interpreted.
Most 2d degree murder statutes, as I understand it, are descendants of "depraved heart" murder. You may come across a case in your casebook from the late 1800s about a drunk husband who threw a lit kerosene lamp at his wife. The lamp burst, lighting her nightgown on fire, and she later died from severe burns. While the court found no specific intent to kill, his act evinced a "depraved and malignant heart," demonstrating a reckless disregard for the value of human life.
Thus, as I understand, it would typically break down:
1st degree murder = specific intent + premeditation (absence of heat of passion).
2d degree murder = "depraved heart" + extremely reckless act (no specific intent).
1st deg. manslaughter = intent + heat of passion.
2d deg. manslaughter = knowingly reckless or grossly negligent act, no specific intent.
With regard to sentencing, you're right; sentencing guidelines make little sense. A grandmother on a first time cocaine conspiracy charge can easily get 20 years in federal pen, whereas a rapist or aggravated batterer might only get five or less in state prison.
I can't really contribute too much at the moment, except a couple brief comments on strict liability in criminal law. First, the oldest example of a strict liability criminal offense is felony murder - whenever a death results during the course of a felony, it is considered felony murder without regard to culpability. This is the primary exception to the general rule that "strict liability is wholly foreign to the common law."
Second, the relationship between consent and strict liability is not quite as clear cut as it has been traditionally or commonly construed. Mark Kelman wrote an article called "Construction of the Substantive Criminal Law," or something close to that, where he argued that the common interpretation of strict liability is a case of "narrow time framing." By looking at an actor's voluntary undertaking of an entire event as opposed to each element, culpability can be constructed.
I saw Gerald Torres speak last weak. He had interesting stuff to say, but seemed lethargic. He rambled. He seems like a realy nice guy, though, and was highly recommended by a few of my professors.
TEXAS SUPREME COURT DOESN'T KNOW HOW TO PROVE SOMEONE INNOCENT.
I do not know if any of you watch "Frontline" on PBS. If you do not, the last couple weeks have been very interesting. On Tuesday, they had a show about the high-cost of enforcing the marijuana laws in the United States. It discussed how draconian the sentencing has become for all drug cases, and how the government convinces women (generally) to testify against their husbands. The one woman they interviewed who did not testify against her husband was in prison garb spending twelve years away from her 4 young children. (In fairness to the government, they have allowed her to see her children once a year for the past four years.)
At any rate, a couple of weeks ago they had a show called "The Case for Innocence." Barry Sheck and Peter Neufeld were prominently heard on the program which dealt with the science of DNA and how it is being used to free many people from death row and other prisons and the resistance the government has to this. One case they talked about was particularly egregious. A man had been sentenced to 99 years for murder and rape. After serving 13 years (?) DNA testing was done and it was found that his DNA excluded him as the rapist. Apparently, the case against him was extremely weak and based upon circumstantial evidence. The day the girl was found in the woods he was working in the woods as a Lumberjack. There were three hours he could not account for, and he made statements to his friends that either the day before, that day, or the next day, he picked up girl in his truck and had intercourse with her.
His boss: "Well there was was that three-hour time period they were talking about. All I know is this: it was a one lane road to where he was working that day. It was a hour and a half in and an hour and a half out. I was driving up the road when he was supposed to be driving down to kill that girl. If he had been driving on that road coming down, I would have run into him. I didn't."
Reporter: "Why didn't you tell this to the police?"
Reporter: "Why didn't you testify to this at trial?"
His boss: "No one asked. When you go to court and sit on that stand under oath, they tell you only to answer questions that are asked. If they asked me I would have answered. No one did."
District Attorney: "Just because his DNA doesn't match that found in the girl doesn't mean he didn't kill her. Maybe he held her down, while someone else raped her. Maybe he wore a condom and raped her. Maybe she had sex with some guy the night before."
Barry Sheck: "You know, when they find out the DNA doesn't match they always come up with the "immaculate ejaculator." That is the person who provided the sperm that we found in the body that doesn't match. It doesn't matter whether or not there is any evidence of a second person being there. They always know they got the right man, and if his DNA doesn't match, there must be this mysterious immaculate ejaculator who came along and made a deposit. And if that doesn't work they begin attacking the victim's reputation."
District Attorney: "She wasn't the most moral of women from what we understand."
Defense attorney: "That's nonsense. We checked all that out. We know that she had not had intercourse with anyone for at least 96 hours prior to the incident. That is absurd for the District Attorney be saying that, they know a that this was a "good girl" and it is just insane for them to be attacking her morality."
Supreme Court Justice who wrote the opinion: (looking down her nose at the reporter) He did not did not prove he was innocent. All he proved is that it was not his DNA found in the body. Maybe he wore a condom, maybe he helped somebody else raped her, maybe she had intercourse was somebody else, you know she was not very moral woman."
Reporter: "But if this does not demonstrate innocence, what could? How could anyone prove their innocence?"
Justice: "I don't know."
District Attorney: "I'm not going to argue with you over this. The jury found him guilty. The prisons are full of men who claim they were innocent."
Reporter: "But he really is innocent. All he wants is a new trial. What is the harm in that? If you can prove he is guilty through another theory, why don't you do that?"
District Attorney: "I am not going to argue this point with you. The jury found him guilty. We do not want to give new trials to every person who claims he is innocent, even if he can prove it."
Reporter: "So, he stays in prison."
District Attorney (with shit-eating grin): "And he will be there for a very long time."
Prisoner: "They have me here, and they're going too keep me here. But I know the truth. And now they do too."
Next time you wonder why you're doing this, remember this guy in a Texas prison for the next 99 years.
Or the guy in Virginia they executed, claiming he was innocent. The government wants to destroy the DNA evidence before Barry Scheck can have it retested, because the case is closed
Thanks for the report. The most frightening statement is this:
"We do not want to give new trials to every person who claims he is innocent, even if he can prove it."" [italics mine]
That impression has not been contradicted in the Texas cases I've read so far.
Haven't heard of either Cole or Torres.
Democracy and Coercion? Seems like a slightly skewed title to a course, as if the cards were already stacked in one direction.
One thing I'm very grateful for is that the school I'm attending tends to downplay ideological ranting and focuses on law principles, theory, and the study of case law.
LadyC
From what I understand, the modern trend is to abandon the "willful, premeditated, deliberate" standard and to focus on trying to differentiate the different degrees based on culpability levels: intent or knowingly, reckless, and negligence.
This seems to be a better scheme, on the face of it, but I'm still learning the issues here.
(smirk)
I'm a couple of days late in fulfilling a request from Candide, but here is a nicely-done opinion on Australian PM John Howard from the "Sydney Morning Herald," which mentions the mandatory sentencing debate referred to earlier in this thread:
A Study in Cynicism
About a month ago The New Yorker ran an article on The Innocence Project. It was quite interesting. However, the reporter seemed to hold back on giving Sheck and Neufeld their proper due for the excellent work that they have done with their project. The article gave considerable space to one case in which someone exonerated by Sheck and Neufeld was subsequently found guilty of raping the original victim (or something like that). I'm a little hazy on the details (school will do that to you), but the article seemed rather injudicious in its assessment of the project's work. At any rate, it is quite interesting. If I run across it in my rat-trap of an apartment, I will give you the title and date of publication.
Frankly, second-degree murder and voluntary manslaughter, in my humble opinion, are kept around as sops to the jury, to make them feel better about convicting people and thus make it easier easier to get convictions for the District Attorney. In fact, I've never had a client for whom I was the trial lawyer, convicted of first-degree murder, although I've represented several people were charged. It is very difficult to defend a murder case in the Central Valley California. First of all, there is a dead body and the jury wants someone to pay for it. Secondly, your client is sitting there and the police say he did it, and the jury takes that very seriously.
In fact, in California a person no longer has a right to an all or nothing verdict. I did one of the last trials were you could still do this, and the judge said no way. What happened was my client stabbed a man who was trying to rape him fourteen times in the head during the struggle. Only the last two wounds were fatal and the others would cause bleeding, but would simply enrage the person more according to the pathologist. My client wanted an all or nothing verdict (i.e. it was first-degree murder or nothing.). The judge, on his own threw in the second-degree murder and manslaughter instructions.
.
Fortunately the case was overturned on other grounds (the judge excluded the fact that three years earlier he had raped a 16-year-old boy under the same circumstances -- my client was 19 at the time of the incident. ).
Suffice it to say it is my opinion that in many cases voluntary manslaughter is killing in self-defense, or, the jury just doesn't like your client but they don't think he got to go to prison for life because the victim was worse.
Below are some of the California jury instructions on murder. You tell me the practical difference between first-degree and second-degree murder, and voluntary manslaughter and self-defense.
The circumstance that Ladychaos discussed, where a man threw a lighted lamp at his wife probably was considered second-degree murder in the 19th century, because the 19th century, juries were all men and it was their right to beat their wife if they wanted to. They probably figured, why should we kill this guy for doing something we all want to do anyway
MURDER--DEFINED
(Pen. Code, § 187)
8.10
[Defendant is accused [in Count[s] _______] of having committed the crime of murder, a violation of Penal Code section 187.]
Every person who unlawfully kills a [human being] [or] [fetus] [with malice aforethought] [or] [during the commission or attempted commission of ___________ (statutory felony)] [a felony inherently dangerous to human life] is guilty of the crime of murder in violation of section 187 of the Penal Code.
[In the crime of murder, a human fetus is defined as an unborn offspring in the postembryonic period, after major structures have been outlined. This period occurs in humans seven or eight weeks after fertilization.]
[A killing is unlawful, if it [is] [was] [neither] [not] [justifiable] [nor] [excusable]].
In order to prove this crime, each of the following elements must be proved:
1. A human being was killed;
[1.a. A human fetus was killed;]
2. The killing was unlawful; and
3. The killing [was done with malice aforethought] [or] [occurred during the commission or attempted commission of __________ (statutory felony)] [a felony inherently dangerous to human life. ______________ is a felony inherently dangerous to human life.]
"MALICE AFORETHOUGHT"--DEFINED
8.11
"Malice" may be either express or implied.
[Malice is express when there is manifested an intention unlawfully to kill a human being.]
[Malice is implied when:
1. The killing resulted from an intentional act,
2. The natural consequences of the act are dangerous to human life, and
3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.]
[When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.]
The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.
The word "aforethought" does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.
CALJIC 8.20
DELIBERATE AND PREMEDITATED MURDER
8.20
All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.
The word "willful," as used in this instruction, means intentional.
The word "deliberate" means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word "premeditated" means considered beforehand.
If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.
The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances.
The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder of the first degree.
To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, [he] [she] decides to and does kill.
CALJIC 8.21
FIRST DEGREE FELONY-MURDER
(Pen. Code, § 189)
8.21
The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs [during the commission or attempted commission of the crime] [as a direct causal result] of ______ (felony) is murder of the first degree when the perpetrator had the specific intent to commit that crime.
The specific intent to commit ______________ and the commission or attempted commission of such crime must be proved beyond a reasonable doubt.
UNPREMEDITATED MURDER OF
THE SECOND DEGREE
8.30
Murder of the second degree is [also] the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation.
CALJIC 8.40
VOLUNTARY MANSLAUGHTER--DEFINED
(Pen. Code, § 192, subd. (a))
8.40
[Defendant is accused [in Count[s] _______] of having committed the crime of voluntary manslaughter, a violation of section 192(a) of Penal Code.]
Every person who unlawfully kills another human being without malice aforethought but with an intent to kill, is guilty of voluntary manslaughter in violation of Penal Code section 192(a).
There is no malice aforethought if the killing occurred [upon a sudden quarrel or heat of passion] [or] [in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury].
In order to prove this crime, each of the following elements must be proved:
1. A human being was killed;
2. The killing was unlawful; and
3. The killing was done with the intent to kill.
[A killing is unlawful, if it was [neither] [not] [justifiable] [nor] [excusable].]
CALJIC 8.45
INVOLUNTARY MANSLAUGHTER--DEFINED
(Pen. Code, § 192, subd. (b))
8.45
[Defendant is accused [in Count[s] _______] of having committed the crime of involuntary manslaughter in violation of section 192, subdivision (b) of the Penal Code.]
Every person who unlawfully kills a human being, without malice aforethought and without an intent to kill, is guilty of the crime of involuntary manslaughter in violation of Penal Code section 192, subdivision (b).
A killing is unlawful within the meaning of this instruction if it occurred:
1. During the commission of an unlawful act [not amounting to a felony] which is dangerous to human life under the circumstances of its commission; or
2. In the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.
[An "unlawful act" [not amounting to a felony] consists of a violation of _______ Code section[s] _______.]
[The commission of an unlawful act, without due caution and circumspection, would necessarily be an act that was dangerous to human life in its commission.]
In order to prove this crime, each of the following elements must be proved:
1. A human being was killed; and
2. The killing was unlawful.
To drop a name, I met Mr. Sheck at the last death penalty seminar I intended. I almost had lunch with him, my expert witness in confessions invited him, but he was preparing for the afternoon lecture. He is much shorter than he appears on television. That is about my only impression of him from meeting him, except to say that he is very intense and no one will go to death on his watch if DNA has anything to say about it. In our community, he is a god.
I can never remember her name, but she is one of the attorneys who defended the Menendez brothers. She is literally one of the most intense people I've ever met. She is also very short (I think my wife is taller, and on a good day she is only 5 ft.). Frankly, in person she looks like a little old Jewish grandmother. She is much better looking on television.
FYI: this element of murder was added to the California penal code after Keeler v. Superior Ct (1970). A man, separated from his wife, pursues her and kills her unborn child (fathered by another). She brings charges of murder, and the CA courts held that there was no such thing, since neither the statute in effect at the time or common law defined a fetus as a human being.
The man got off scott free.
The CA legislature promptly passed an amendment to their murder statute including the deliberate killing of an unborn fetus.
This area of the law is simply chock full of lovely little stories like this one.
Unless it's an abortion, of course.
However, I think you miss the distinction if you're going to open that can of worms.
Skier Liability Case in Colorado Court
Or, I'll try not to kill anyone out there next week.
No, I get the distinction--but the fact is that in creating the definition, they opened the can all by themselves.
Woman had three children, and was living with her boyfriend for the last 8 months. The 10 year old daughter stays home from school one day, woman goes to work, leaves boyfriend alone with her. They get home at the end of the day, and find the girl naked, under a pile of clothes in her closet, stabbed several times, dead, of course.
The guy was convicted of 1st degree murder at trial. It was reduced to 2nd degree murder on appeal because the court found, under CA laws that the Defendant hadn't met the requisite "deliberate and premeditated" standard as they saw it. Case was State v. Anderson (I think).
You have to read the statute in its entirety to place the particular section I highlighted.
State sanctioned abortion would simply be seen as an exception outside the statute.
Oh, I agree that that's what it would be called. It's still a tad unsettling. I wasn't speaking from any legal perspective.
Not that you don't have enough in the way of resources but you might want to bookmark this for quick reference.
Find Law
This is absolutely outrageous, especially considering the fact that a defendant is legally required to be present for his trial.
This is one more Dred-Scott in the recent history of due process decisions by this bunch of f_ckers. Rehnquist, O'Connor, and Scalia should be taken out and shot for what they've done to our Constitution.
At any rate, what better reason to vote for Gore does one need.
Cracks me up. Sometimes its downright fun being almost two decades older than most of my peers.
Btw, one of my Prof's, who's not unknown in the academic world of tort law, had me on the floor with one of his stories regarding a reaction he had to Scalia when he was trying a case before the SC. Said that Scalia is known for tearing lawyers apart, particularly keen on showing up his intellectual superiority. One session he was watching this poor lawyer virtually white knuckled trying to deal with one of Scalias 'traps', and said he'd wished he'd had a button on his chair that he could just push and send the bas***d out the ceiling of the court.
I thought at that moment that perhaps he didn't care for Scalia either......hmmmm
", it is okay for a prosecutor to tell the jury on closing argument that it may draw an inference from the fact that the defendant "heard all of the testimony throughout the trial, and therefore had the opportunity to 'conform' his testimony to that of the other witnesses." "
Errrr... okay. You've ranted. Now explain your problem.
Prosecutors ask the jury to draw inferences of guilt in final summation. And they're not allowed to ask the jury to draw inferences that the defendent lied on the stand based on the factual circumstance that yes, the defendant WAS present, hearing all testimony?
Perhaps the Prosecution should just go home on the first day, ay?
For christ's sake.
The other silliness, of course, is the fact that the case is only being heard NOW suggests it's been done this way for 200 years. Surely this can't be the FIRST time in history a prosecutor has made such an argument to the jury.
And yet Chaos rants. A precious right has been lost.
Well, you know, not really. Psssst-- there never was such a right, apparently.
Of course, Ace, all of this is impractical nonsense because we all know that anyone who's on trial must be guilty, right?
"It's patently absurd for a prosecutor to be allowed to tell the jury that they should draw any inference from the defendant's presence."
1) They don't "tell" the jury. They "argue" to the jury. They ASK the jury to make an inference.
2) The inference is patently reasonable. It would OCCUR to any juror who wasn't a retard. There's no reason to gag the prosecutor from suggesting a perfectly reasonable inference. Must the jurors conclude that, if the defendant watched the whole trial, he had time to prepare his testimony to conform to theirs? No. Can they? OF COURSE THEY CAN.
Here's ChaoticMind's theory:
1) The prosecutor can say, "The defendant is a LIAR. You can infer this from the evidence."
2) But the prosecutor CANNOT say, "You may infer, based on the defendant's presence during testimony, that he had time to concoct a lie which jibed with the other testimony."
Absurd.
Who gives a shit if he's "required" to be at the trial?
"Of course, Ace, all of this is impractical nonsense because we all know that anyone who's on trial must be guilty, right?"
"I mean, why don't we just dispense with the presumption of innocence and impose an automatic sentence on the basis of the State's Information?"
Wow. Great arguments, Chaos. I especially appreciate their finely nuanced hysterical screechiness.
Let's think this through.
Defendant is on trial for murder. He claims that he had no motive to kill the victim.
In fact, he testifies, me and the Victim went to a baseball game on April 28 together. Great buddies were me.
But the afternoon of April 28, Defendant was on Trial for ANOTHER crime-- in the courtroom.
Would it be unconstitutional, I wonder, for a prosecutor to ask the Jury to infer that Defendant is lying about the April 28 baseball game meeting, since he was in court on trial on that date?
Would that inference be "unconstitutional" to ask the jury to make? After all, the defendant was REQUIRED to be the courtroom on April 28. Isn't it a constitutional violation to draw any adverse inference from his presence in the courtroom?
Or: Defendant claims the murder weapon doesn't belong to him. He testifies he can explain how his prints got on the weapon, but he never does satisfactorily.
Can the prosecutor ask the jury to draw the inference that, since the Defendant SAW the murder weapon at trial, and yet was unable to explain the presence of his prints on it, he ergo must have no innocent explanation?
Once again-- an inference based on the defendant's "required" presence at trial that you're so frenzied about. And yet a perfectly reasonable inference. Perfectly fair for the prosecutor to ask the jury to make.
Once again: Does the jury HAVE TO make the inference? No. May they? Of course.
Or: Witness points to Defendant when asked to identify the murderer.
Defendant was "required" to be in court. Jury is being asked to draw several inferences: 1) that the witness is credible, 2) that her powers of perception are trustworthy enough to point out the murderer. And ultimately, of course, the inference that the defendant IS, in fact, the murder.
An inference about defendant's guilt flowing straight from his "required" presence in the courtroom. Toss out courtroom identifications, too, Chaos? Is that the next thing you'll get frenzied about?
Your arguments are intellectually dishonest, and you know it. You are deliberately conflating the issue, inter alia, of alibi with the subject under discussion.
Of course, juries draw their own inferences from the defendant's presence in the courtroom; they are allowed to do so. As you know, juries often infer from the fact that a defendant doesn't take the stand that the defendant has something to hide. But you also know that prosecutors are not allowed to ask juries to draw any such inference because a defendant's decision to exercise his Fifth Amendment right cannot be used against him. So, if State Attorney Ace stood before the jury and asked the jury to infer from the defendant's silence at trial that he had something to hide, the court would be required to declare a mistrial.
The lesson here, of course, is that a prosecutor does not have free reign to ask a jury to draw inferences from everything a defendant does or does not do while in the courtroom. Because a defendant does not sit in the courtroom voluntarily, it seems improper to argue that he was there for the purpose of tailoring his testimony to the State's case. Apparently, four Justices of the Supreme Court agree, so I don't see how you can dismiss the argument out of hand.
You are going to love being a lawyer. While working this morning on an opposition to a motion to dismiss in a federal diversity case, it occurred to me that, in many respects, this profession is a lot like debating on the Mote. The difference is that you get paid to do it.
Not all lawyers are litigators. Those of us who aren't can go through our professional lives seeking to reach agreement, rather than trying to win everything.
Moreover, the way litigation has been practiced over the last two decades, there are substantial advantages to beating up on your opponent, and not merely winning by the strength of your arguments (then again, that is like the Mote...).
Whoever said anything about "beating up" on one's opponent? I am always perfectly civil when drafting my motions, briefs, etc. I will sometimes say things like, "Defendant makes a game argument with respect to ...." or, "Defendant's reliance on ... is misguided," etc., but I never impugn my opponent's intelligence or professional ability. I believe that getting nasty will only reflect bad on you professionally, because if you don't have a perfectly rational argument for why the opposing side is wrong, then you have no business being in court in the first place.
There's more to beating up on one's opponent than using nasty language, although when I wrote briefs (usually in the bankruptcy contaxt) I was always told to "punch them up" because I'm too civil.
To me, beating up on one's opponents include no end of uncivil litigation tactics designed to make reaching the end result more difficult for your opponent, without promoting the truth-determining aspects of litigation.
I'm glad I'm out of litigation, and hope never to see the inside of a courtroom again.
Me TOO!!!
So will LC.
I already love learning about the law, I hope it carries over into the work.
WRT litigation: I hadn't planned on doing litigation, but I imagine some courtroom experience is good.
Before I began studying law, I thought I'd be mainly interested in corporate and property law, and I was right. I had no interest in litigation, and my foray into criminal law only verifies my initial feelings about the whole area.
My hat is off to all those criminal lawyers out there, this is a horrendous area, and I think I'd be in a blue funk constantly were I to work in criminal justice.
And just why do you say that? Because I'm too sensitive to work in criminal law?
I swear to god, reading these child murder cases has just about done me in.....
I'm dreaming the impossible dream, however, to someday create the perfect contract!
Also, there seem to be a growing number of child pornography cases like the one in Grand Rapids where a 23-year-old man was turned in to the feds by the film processor for photographing his 17-year-old girlfriend in the nude. The judge said she was old enough to have sex with him but not for nude photographs even though she testified in his behalf that she willingly participated in the photo session. He got 5 months in jail despite the fact that he had not published the pictures on the Internet nor mailed them across state lines. (The photo print paper had come from out of state which was enough to get the feds into the act.)
An article in today's paper describes the case of an Ohio woman being prosecuted for taking pictures of her two young 5 and 3? daughters in the bathtub. She was also turned in by the drugstore photo processor. She is being represented by ACLU and has refused an offer of a settlement.
In the basketball case, a player smashed another player's face with his elbow, intentionally and away from the ball. It was an act of pure maliciousness, and was not a by-product of the game. If it had occurred anywhere but on a basketball court, nobody would question the assault charge (the victim required reconstructive surgery). The guy was certainly guilty... but 5 years? It sure seems excessive, but the fact that it occurred on a basketball court is basically irrelevant.
The porn issues sound, from what you report, to be pure silliness.
The reason the guy got 5 years was that he was already on probation for a felony. He (the defendant) did not take that into consideration when bargaining, and now he's griping about it. Still, he will most likely serve no more than a year.
wonk:
but, as you said, five years was quite severe in the high school basketball case.
Please see Message # 449.
Battery in sports has been determined by the customs and traditions of the game, and by official stances by the guiding sports associations. In basketball, punching an opponents face in would not be considered part of the customary body contact of the sport, so I can see where the youth was prosecuted for that one.
In addition, the official stance of many sports associations is that they do not condone excessive violence and force. This provides the courts with the necessary rationale they need to convict when confronted with outrageous injuries.
WRT the child pornography issue: it too has strict liability attached to the crime in both federal and state statutes. It's the will of the people. That some get caught inadvertently in the net is one of the consequences of having no mental culpability attached to the crime.
You doubt wrongly. Child pornography is regulated by the feds under the commerce clause, by statute. States also regulate pornography, but these laws (statutory) are secondary to the federal statutes.
Sex with minors, on the other hand, falls within state statutory regulations on rape (statutory), and sexual assaults. The legal age for sex with the young differs from state to state, and is not within federal control.
All, however, are statutory laws that the courts are bound to follow, unless very vague or ambiguous, in which case they can either wiggle or declare them unconstitutional (according to the state constitutions, if possible). Contrary to your belief, the courts do not "make" these laws up, they reflect the attitudes of the state legislatures (or the federal) with respect to both subjects: pornography and sex with minors.
As MsIT points out, the issue of battery in sports goes to whether the contact was a result of the traditions of the game, and thus whether the victim willingly submitted to the risk of such contact.
My problem with the teen porn case is that the guy obviously lacked intent to distribute the pictures. As a general policy matter, I find it silly that new laws are being passed to allow the prosecution of 14 year olds as adults, yet the same "group" of right-wingers pushes for laws making it mandatory for 16 year old girls to get parental consent to have an abortion, and they presume that a 17 year old girl cannot voluntarily submit to having her picture taken in the buff. Just silly.
Pelle,
"Statutory rape" refers to a doctrine which holds that a person below the legal age of adulthood is incapable of legally consenting to having sex with an adult. Thus, the adult who has sex with a minor, no matter how experienced or sophisticated that minor may be, can be charged and convicted of statutory rape.
Chaos:
I find it silly that new laws are being passed to allow the prosecution of 14 year olds as adults, yet the same "group" of right-wingers pushes for laws making it mandatory for 16 year old girls to get parental consent to have an abortion, and they presume that a 17 year old girl cannot voluntarily submit to having her picture taken in the buff. Just silly.
Is this what they're teaching you in law school these days? You'd better go and look some things up. I think you'll find that, in most states, the age of consent rises and falls with the public mood, and are just as liable to be changed either way by administrations of either party.
You may have noticed that I made my point "as a policy matter," so I don't know why you bring up law school. My point was that the "public mood" is contradictory and hypocritical. If a 16 year old girl doesn't have the capacity to make an informed decision to have an abortion, then it's difficult to argue that a 14 year old boy can form the requisite intent to commit a serious crime. The former assumes that a teen doesn't have the capacity for reason, yet the latter does.
So...
...you're comparing the decision to have an abortion to the intent to commit a crime?
I like you better already, Chaos.
Moreover, there are too many law enforcement people in the system with too little to do. The more hired the more silly investigations, trials and the more people in prison. If everybody who ever violated a law went to jail, the nation would have trouble feeding and clothing itself.
wonk:
Regarding the basketball player - I read about the case the other day, and am a bit foggy on the exact details. But I'm almost positive that the guy was offered a very reasonable plea bargaining agreement, wherein he would receive at the most a year and quite possibly only a couple of months. Instead, he chose to go to trial on the chance that his current probation status would not be taken into consideration in sentencing. Where he got this dumb idea I don't know, but he was wrong, wrong, wrong.
wonkers:
Well, I agree with you about the other two cases (absent any untoward floating objects, of course).
BTW, another thing mentioned in the article I read (Grand Rapids Press - don't bother, they don't have an archive of even a few days - I just checked) was that the guy now - just now - is claiming that his coach told him to punch that other kid, and is also angling for some racial bias thing - all the other kids in school punch kids in the nose during games, but he's being singled out because he's Hispanic, or something like that. The coach thing has been checked out, and his teammates and everyone else in the school say he's basically full o' shit.
I understood what you were trying to say. What you seem to miss is that if something is reported, and there is a statute requiring that the state prosecute, then they will.
At the very least, they must investigate. And, again, because these are strict liability laws, the particular facts of the cases doesn't matter. Strict liability requires prosecution for breaking the law regardless of the circumstances of these cases, or the silliness of these people being caught in the net.
That's what strict liability laws are all about. No excuses. You don't like it, then lobby to have the laws rewritten to require the state prove some level of mental culpability. As it stands, this is one of the consequences of such a standard.
Btw, almost all legal academics uniformly dislike strict liability laws, and the Model Penal Code has come out strongly against them except in cases of statutory rape of 10 and under. However, such laws remain on the books.
I think what people tend to forget is that the thrust of laws such as the ones discussed here are made not so that the police can go around arresting people and prosecutors will have something to do. They're there to protect people. Sure - this 17 y.o. girl obviously had no problem with having her picture taken. But in a lot of similar cases there is a level of coersion or even outright threats, and unfortunately the law cannot make acceptions at every turn.
That said, doesn't it seem a bit odd that, 1) The boyfriend didn't bother looking into whether it was in fact legal, and, 2) Even if he had considered that, and decided it must be legal, it never occurred to him that the people developing the film might think, Hey - this girl doesn't look old enough to be posing nude!...?
...to say nothing of the colossal lack of respect it must take to leave nude pics of your girlfriend at the local Fotomat for the pimply faced teenage clerk to gawk at.
Wonkers
I don't get your drift. Are you suggesting the courts and police use discretion (according to their own sense of morality) to ignore statutes when their application yields foolish results? Not that they don't already do this, to the great dismay of the public when they discover it.
Generally, when courts have done this in the past, by refusing to impute a meaning into a law that the legislature wanted, the legislature comes back and amends to eliminate the courts position. This is not an infrequent occurrence.
I don't know what's worse, a legal system with wide discretion to selectively apply the laws or a legislature with a mindset that creates innumerable strict liability laws.
Just how would you suggest the courts determine when it's okay for a minor to have participated in pornography and when not? By consent?
Consent doesn't get you anywhere under statutory rape laws. By age? Age is arbitrarily drawn in these statutes, but there's no way around that.
By the circumstances? Oh, it's okay for the 17 year old to have had her boyfriend take the pictures. But what if it had been her dad? Or uncle? She consents so it's okay?
You seem full of wisdom. How about some guidance on a more reasonable method that still strongly protects children from sexual exploitation by adults.
you're comparing the decision to have an abortion to the intent to commit a crime?
Bingo. Gosh, I don't know how you get through the day without throngs tossing laurels at your feet in honor of your genius.
Both situations entail whether or not the individual has sufficiently developed an adult capacity for reasoning. Our society imputes such capacity to minors in those circumstances where it is "convenient" for the adult voters to do so. Thus, it is politically expedient to impute adult capacity to 14 year old criminals while deciding that a 16 year old girl lacks such capacity. The result, however, is contradictory and hypocritical.
For the past few years the INS has maintained that the law requires them to commit very callous and inhumane actions. But recently they have been told to develop guidelines to allow for enough discretion to avoid the horror cases that have been occurring with regularity since the law was changed. Now even the some of the law's right-wing authors are complaining that the law didn't contemplate some of the injustices that are occurring. Soon, either the INS will change its stubborn, mindless policies or the law will be amended again. This'll happen because Americans don't approve of the ridiculous results we have been getting lately. Moreover, when the law produces a result that defies commonsense at a low level there is often a good chance of getting a reversal on appeal. Apparently that's what the ACLU thinks in the Ohio case.
I'm about to start working on a habeas corpus petition involving a Cuban national who is being held pending deportation. Of course, Cuba won't take him so his predicament amounts to a life sentence.
In a way, I can understand the INS's reasoning in enforcing the law so strictly. Even if the INS develops guidelines allowing for greater discretion, the law will still make certain people subject to deportation at any time. Thus, potential deportees would have to live the rest of their lives depending on the good graces of whoever happens to be calling the shots at the local INS office. Better to create political pressure to change the law.
Yea. I mean, if you can't come to this country and use and sell drugs, what the hell's the use of coming?
These people should've realized they'd have been much better off staying in Cuba, where they don't cobble together drug laws.
I don't suppose it's occurred to you that most of the Mariel boat people were locked up in Cuban prisons and sanitariums before Castro set them loose on us?
Are you working out of one of the Public Law clinics at your campus? Or do you have a real live job while in school?
Fwiw, it has already been established that most of the Marielitos were not criminals. I recently helped represent a dear old man who came over on the Mariel, one who at age 76 has more energy than I do, and who never missed a day at work until the mining company he was at laid him off due to his age.
MsIT,
I'm working at a firm in Coral Gables. A couple of the partners are in the leadership of the Cuban American National Foundation, which occasionally leads to some interesting situations. One of my bosses was seen on national television during Elian's visit with grandmothers, ranting about Cuban agents, cellular phones, and kidnapping conspiracies.
To be clear, the part of the 1996 Immigration Act which makes immigrants who commit enumerated "serious crimes" subject to deportation was not aimed at any one particular group, and I'm not even sure that the Drug War was the overarching factor behind it.
Having said that, the best way to end drug gangsterism would be to end the Drug War. I think that you know the rest.
This particular client lived in hiding for fifteen years before the FBI picked him up. In the interim, he lived an exemplary life, running a successful business in Palm Beach County, contributing to charity, etc. He even became a member of the Cuban American National Foundation, which kinda' makes you wonder where the feds were looking all that time. His co-defendants, who stood trial in the late 70's, were actually acquitted of the original charges. He only did time because the government threatened to charge his wife with harboring a fugitive, so he copped a plea. The Justice Dept. recommended him for early release after he had done eight years of a 12 year sentence. That same DoJ picked him up the day he got out and put him in a county jail.
First, wrt Message # 441, I really agree. I have thoroughly enjoyed law school to this point. You are crazy for liking corporate and property law, though, unless you are simply trying to "know thy enemy." (g)
Second, a long time ago (actually, a full spring break ago) I mentioned a professor, Gerald Torres (Message # 387); you said that you were unfamiliar with him. H is a property professor at UT Austin and a prominent critical race theorist.
Third, you commented on the title of my course "Democracy and Coercion," saying that it seemed ideologically skewed. It actually is, but in the opposite of what yuou would expect: it is pro-Liberal (the professor is a firm believer in a determinate Bill of rights).
The course discusses the inherently coercive nature of majoritarian government and attempts to define the spheres that have been historically off limits to majoritarian control. Basically, it starts with Lochner and works its way chronologically from there.
Fourth, I think that you are not granting enough credit to strict liability as a concept. It is not entirely intellectually discredited - a lot of critical legal studies writing has been about strict liability (and other de jure constructions) in contracts/torts. The best article on its application to criminal law is an article by Mark Kelman entitled something close to Construction in the Substantive Criminal Law. If you want a full cite, I can get it.
By downplaying "ideological ranting and focus[ing] on law principles, theory, and the study of case law," your school might be doing you an injustice.
I don't think so. I've had enough ideological schooling to last me this lifetime. I enjoyed it at the time, but want something less inflamatory these days.
Yes, I found out who Torres was after you mentioned him, but I don't think he's in property. Critical theorist, yes, however, as I said, I'm done with critical theory these days. And if he teaches property, I think I'll avoid that class, again, though, I don't recall seeing him on the roster of property faculty.
Regarding corporate/property law: perhaps if I tell you my background is in economics it might make more sense.
Regarding your class: that's what I thought the bias was, so I don't know how it would be in the reverse. However, it sounds vaguely pro-libertarian as well. Do tell us how you're enjoying the thing, too.
Btw, I dislike strict liability in criminal law intensely, if you haven't picked that up yet. As for strict liability in contracts and torts, that's another beast entirely. There's more room for a good case to be made for SL in civil law than in criminal law, IMO.
It is difficult to peg the ideological bias of my curriculum. This semester I have a critical race theorist, a law and economics professor (admin law), a law and society professor, and a classical liberal (Democracy & Coercion). Though they all are generally leftist, the curriculum's only consistent ideological argument is that current law is not non-ideological. The most enjoyable aspect of law school for me has been discussing and learning about the various ideological foundations of current law.
Actually, though I don't agree with much of it, Law and Economics is currently my favorite genre of legal theory. I enjoy trying to play the game by the rules it sets up.
Later today (after 6) I'll post a couple of defenses of strict liability in criminal law and see how they fly.
A state judge in New Orleans has removed six teenage boys from a juvenile prison after finding they had been brutalized by guards, kept in solitary confinement for months for no reason and deprived of shoes, blankets, education and medical care.
The descriptions of conditions at the prison in Jena, in central Lousiana, are stark. But the criticism is particularly troubling, federal officials and lawyers for the prisoners say, because THE PRISON IS RUN BY THE WACKENHUT CORRECTIONS CORPORATION, THE WORLD'S LARGEST FOR-PROFIT PRISON OPERATOR. The judge said the company, which generally has a good reputation in the industry, HAD TREATED THE YOUTHS NO BETTER THAN ANIMALS.
The situation raises a fundamental question about privately run prisons: Can corporations operate them more efficiently than state governments without skimpoing on essential services and proper training?.....
Justice Dept officials and others said the problems at Jena were at least partly caused by Wacdkenhut's efforts to cut costs. Consultants for the dept and a federal judge found the company had stinted on food, clothing, education and medical treatment for 276 inmates, and on training for guards.....
Wackenhut, based in Palm Beach Gardens, FL, operates 39,308 beds in 56 instutuions in 13 states and seven foreign countries....
John Whitely, a former warden of the LA state penitentiary, who examined the Jena prison for Judge Polozola, said that the pervasive lack of shoes, underwear, blankets and mattresswes for inmates was "just cheap."
From an article by Fox Butterfield NYTimes 3-16-00
As is often the case in LA, Jena is enmeshed in a political corruption scandal. A friend of former Gov. Edwards, Cecil Brown, was indicted in N.O. on federal charges of funneling $845,000 in cash from Fred Hofheinz, a former mayor of Houston, to Mr. Edwards for the contract to build the prison.
Though Mr Hofheinz won the Jena contract, he couldn't raise the money to build the $12 million prison and sold the rights to WACKENHUT...
Before opening 14 months ago Wackenhut and state officials had maintained it was being built to provide treatment for juvenile addicts... But the Justice Department found virtually no drug treatment programs at Jena.
Instead they found "a dangerous place to be," with 1/4 of the inmates "traumatically injured" in a 2-month period, many by untrained guards. Guards routinely threw the inmates against walls, twisted their arms or shoved them to the ground because they had not been taught other ways to control the boys.
Dr Nancy Ray, an author of the report, said many boys had no shoes or jackets in the winter; some were forced to spend the day "huddled under a shared sheet or blanket" to keep warm. Inmates often went days without clean underwear, she said, and sometimes fought over newly washed clothes.
Low pay and poor management have led to high turnonver: five wardens since Jena has been open, and 600 persons have filled its 180 staff jobs.
Ray said Wackenhut had skipped basic procedures like background checks on prospective employees for criminal records; some guards were hired despite having records for assault....A quarter of the inmates have IQs of less than 70 but no special education is provided. Also, the guards, mostly white, frequently used racial epithets in talking to black inmates ....Jena's files contained two dozen reports that guards had used force against the teenagers resulting in broken fingers and a broken wrist...etc, ad nauseam.
It seems that warehousing, and poor warehousing at that, is the conservative answer to rehabiltitation. But that's what three strikes laws are all about- these kids will get out eventually. Since they don't get addiction treatment, they'll probably offend again, get sent back for more of the same, and finally we can pay Wackenhut to warehouse them for life. It's job security for private prisons. They have an interest in doing nothing to curb demand for their services, and in keeping costs as low as possible. They win, the lobbyists win, the pols they bribe - er "contribute" to win, and everyone else loses.
There are now more African American males in California prisons than there are in California universities, and a California prison guard is paid about $10k per year more than a starting tenure track college professor in that state's university system.
The silliness of the drug war aside, both comparisons you make in the second paragraph of #493 are meaningless.
1) Who ordained that more people (of any ethnic group) oughta be in universities than in prisons? Do you believe that it's always good to have more people in universities, and/or that it's always good to have fewer people in prison? If not, why would you even consider making such a bald-faced comparison? Both the exact amount of incarceration that maximizes overall well-being, and the exact amount of higher education that maximizes same, are empirical quantities -- and I see no theoretical reason why either one should be higher than the other.
2) I doubt there's much head-to-head competition between those two professions; but I'm fairly sure that just about anyone qualified to be either a prison guard or a tenure-track college professor would strongly opt for the latter, the salaries being equal. Hence, why would you be surprised that the salary for the latter is lower?
I didn't claim that it always did; I was asking why anyone would be surprised if it did, in any particular instance.
wonkers:
I agree. Any Wackenhut facility is a potential nightmare.
The Wackenhut method:
Build a prison in a high unemployment area (they're always fully staffed before they even open), and pay $6 - $8,000 less on the low end and $15 - $20,000 less on the high end for help that is proportionately less qualified than that in "real" correctional facilities. When you get what you pay for, they blame it on the low number of qualified people in the local population, "But we're working on it....".
Ditto wonkers' #499. It doesn't take a lot of brainpower to determine that more people in college is better than more people in prison. The fact that certain criminal justice policies overwhelmingly affect a particular ethnic minority will translate into a social time-bomb, as well, so the justification for such policies must be overwhelming. Wrt the Drug War, such justifications are seriously wanting.
CA recently amended the Family Code to define marriage as a union between a man and a woman. VVermont Will Soon Enact A Same Sex Unions Statute
Would the California initiative statute, if applied to ban recognition of a Vermont union between a man and a man, violate the Full Faith & Credit Clause of the US Constitution?
San Francisco's PC Prison
I've wondered about that myself. I'm no Constitutional scholar, but it seems likely that Prop 22 would be unconstitutional on those grounds.
Well, I didn't want an argument and could think of no sound one in opposition so I let the matter drop....
Discretion is the better part of valor when debating legal matters with Dyke Anthropologists.
Jex- was she swinging a labaris?
The fact is that certain criminal justice policies overwhelmingly affect particular ethnic minorities, and that this translates into a ticking social time-bomb. Thus, there needs to be some overwhelming justification for such policies if we are to continue running the risk of an explosion.
Neither of you really answered my questions. But I guess your open espousal of an I-think-with-my-heart-not-with-my-brain approach makes my point for me.
I made myself pretty clear. If a public policy has such an overwhelming disparate impact on one particular group, the burden should be on the government to provide substantial justifications for that policy.
Your presumption that the amount of incarceration needed to enhance overall well-being can be found as an objective, empirical quantity is flawed. The purpose of incarceration is punishment, and thus involves the taking of a right from the incarcerated. In order to justify the taking of a right, there must be an objective wrong by which the offender deprived another of his or her rights in some way. Punishment serves to balance out this wrong by depriving the offender of what we adjudge to be a just amount of his rights.
The problem with drug war is that the "wrong" is difficult, if not impossible, to quantify. The conventional wisdom, of course, is that drugs harm people therefore selling drugs ought to be severely punished. This of course ignores the fact that alcohol and tobacco cause overwhelmingly greater harm to our society, yet few are suggesting that we lock up the presidents of Anheuser-Busch and B.A.T. The problem with the drug war, and its affects on minority incarceration rates, is that it is no more than an expression of outrage at unpopular behavior, but with the authority of the State and the governmnet behind it.
Your second question goes to the heart of how a society decides to allocate resources; it has nothing to do with whether those two groups will compete for the same jobs. An irrational allocation of resources reflects irrational policies, and eventually will lead to an irrational distribution of labor. Take Moscow as an extreme example, where some of the world's best-trained doctors work as cab drivers and bankers because it allows them to make more money.
I loved this paragraph:
In addition, supporters say, prisoners offer the ultimate in a flexible and dependable work force. "If I lay them off for a week," said Pierre Sleiman, the owner of the T-shirt company at Donovan, referring to his workers, "I don't have to worry about someone else coming and saying, 'Come work for me.'"
Hmmm. This obviously has greater potential than we thought. I'm sure that Chinese companies feel the same way.
And from our fat pig of a former Attorney General:
"It's a problem for corrections officers to have prisoners without anything constructive to do," said Edwin Meese III, the former United States attorney general, who lobbies for expanded inmate labor as chairman of the Enterprise Prison Institute, a Bethesda, Md., research group financed by state grants, research centers and private companies.
Here's an idea, Ed: What do you say we end the Drug War and stop locking up so many fucking people for acts that don't harm anybody?
You're missing my point. As the first sentence of my original post clearly (or so I thought) indicated, my beef is not with your position that the drug war is bad -- which I share -- but with your rhetoric. One can criticize specific criminalization and incarceration policies on their moral and/or pragmatic merits, without resorting to much-more-sweeping appeals to emotion (as you did, in the post I was replying to).
I don't know how I could be more clear. That more black males are in California prisons than in universities is a fact, cold and clear. You call an appeal to "emotion." I call it an appeal to common sense. It is a carbunkle on the face of public policy that should call attention to a deeper underlying issue, which you agree is the folly of drug prohibition. If people are not allowed to point out troubling statistics when debating public policy, then I can't imagine how the interest of rationality in such matters is to be promoted.
MsIT,
The Supreme Court has granted certiori in the case of Ferguson v. City of Charleston, South Carolina. I have just read the 4th Circuit opinion, and think that it's a fascinating case that is likely to lead to a closely divided opinion, one way or the other. I would like to be able to link the opinion to this thread for discussion, but don't have the means to do so. Is there any way that we can do this?
I know that we have sort of had a discussion on the Drug War before, but I am still curious about your views on the topic. Do you support decriminalization or legalization?
I favor complete legalization.
Your "cold, clear fact" is akin to "there are more seeds in this apple than pips in that orange." It may be true; but what of it?
I'll ask again: why is this statistic troubling, in and of itself? I can see how it might be, emotionally; but in order for it to be rationally troubling, you must first believe something like:
a) at least x% of the population (or subgroup) ought to be in university
b) at most y% of the population (or subgroup) ought to be in prison
where
c) x >= y.
What are your x and y, approximately?
That's right Butch . . . er, I mean stumbo: you keep think'n, that's what you're good at.
I don't get the reference, sorry.
Wonkers:
Thank you, thank you. I'll be opening for Steven Landsburg at the U. of Chicago Yuk Yuk's, all of next week.
... Would either of you care to reveal your x and y? Or otherwise elaborate on your reasoning, if any?
It's terribly simple, so I'll try to use small words. Putting someone in prison has consequences quite apart from whether or not prison is a just punishment for what that person has done. It often leaves a child without a parent, for one thing, which has been shown to enhance the chances that the child will have trouble with the law, too. It also assures that the convict's opportunities for the future will be limited. Unless he's doing life, the convict will eventually be released into the community with no money and few prospects for building a gainful future. He is also likely to have been hardened by life on the inside, where the rules for survival are different than they are on the outside. If he's been in for a long time, he will have a hard time adjusting. The felony conviction that preceded his incarceration will bar him from numerous professions, so even under the best of circumstances, his future will be limited.
There is also the economic aspect. It costs about $30,000 per year to keep a person in prison, give or take a few thousand, depending on the state you're in. Add to that the social cost of an absent father or mother, the costs of law enforcement, courts, etc. Obviously, a person in college does not pose such a burden.
Some statistics:
Between 1990 and 1996 the real number of black men and women in federal prison for violent and property crimes decreased by 726. Despite these reductions in violent and property crime sentences, 12,852 black men and women were added to federal prisons for drug law violations over the same period.
Only 11% of the nation's drug users are black, however blacks constitute almost 37% of those arrested for drug violations, over 42% of those in federal prisons for drug violations, and almost 60% of those in state prisons for drug felonies.
All major Western European nations' incarceration rates are about or below 100 per 100,000. In the United States, in 1995, the incarceration rate for African-American women was 456 per 100,000, and for African-American men 6,926 per 100,000.
The United States incarcerates African-American men at a rate that is approximately four times the rate of incarceration of Black men in South Africa.
At the start of the 1990s, the U.S. had more Black men (between the ages of 20 and 29) under the control of the nation's criminal justice system than the total number in college. This and other factors have lead some scholars to conclude that, "crime control policies are a major contributor to the disruption of the family, the prevalence of single parent families, and children raised without a father in the ghetto, and the `inability of people to get the jobs still available.'"
The rate of imprisonment for black women is more than eight times the rate of imprisonment of white women; the rate of imprisonment of Hispanic women is nearly four times the rate of imprisonment of white women.
Given current rates of incarceration, three in ten of the next generation of Black men will be disenfranchised at some point in their lifetime. In states with the most restrictive voting laws, 40 percent of African American men are like to be permanently disenfranchised.
One in three black men between the ages of 20 and 29 years old is under correctional supervision or control.
At current levels of incarceration, newborn Black males in this country have a greater than 1 in 4 chance of going to prison during their lifetimes, while Latin-American males have a 1 in 6 chance, and white males have a 1 in 23 chance of serving time.
In 1986, before mandatory minimums for crack offenses became effective, the average federal drug offense sentence for blacks was 11% higher than for whites. Four years later following the implementation of harsher drug sentencing laws, the average federal drug offense sentence was 49% higher for blacks.
Regardless of similar or equal levels of illicit drug use during pregnancy, black women are 10 times more likely than white women to be reported to child welfare agencies for prenatal drug use.
In 1995, the incarceration rate for white and Latin-American women combined was 68 per 100,000. For black women it was 456 per 100,000.
Due to harsh new sentencing guidelines, such as `three-strikes, you're out,' "a disproportionate number of young Black and Hispanic men are likely to be imprisoned for life under scenarios in which they are guilty of little more than a history of untreated addiction and several prior drug-related offenses... States will absorb the staggering cost of not only constructing additional prisons to accommodate increasing numbers of prisoners who will never be released but also warehousing them into old age."
The results increased the sentences for blacks. I believe that the 100-1 cocaine base to cocaine powder ratio in the Federal Sentencing Guidelines is a work here, along with the mandatory minimums.
Lastly, I am afraid that the methods of enforcement also skew the statistics. With racial profiling, and the concentration of enforcement efforts at drug "markets" which tend to be located in minority neighborhoods, the chances of apprehension are greater for minority users than for whites.
As the crackdown on methamphetamine continues, especially here in the heartland, the disparity should shrink again. This is not something to cheer, it just means that whites will be swept into the draconian measures previously applied with relish to minorities.
A number of federal judges have been harshly critical of the sentencing guidelines.
What's the alternative to prison? Should crime be marginalized in order to keep black men and women in their homes?
One of our most distinguished judges on the local bench granted a reduction on a crack cocaine case based on the 100-1 base to powder ratio as racially based. Unfortunately he was overturned on appeal.
The "alternative" is to not criminalize consensual behavior. Our prisons have a grossly disproportionate number of non-violent drug offenders. This drug war destroys families and is a waste of public resources.
You still didn't answer my question. Never mind, I guess.
I support decriminalization rather than legalization, simply because I think some level of prohibition serves a deterrent effect and can be (though isn't) used to garner support for rehabilitation.
Almost all of the problems you identify in the Drug War are also applicable to those who suffer from drug addiction, though certainly to a lesser extent: poor or non-existent parenting, property crime (I obviously realize that w/o the black market crime would be reduced; given the extremity of certain addictions, though, it would probably still exist), disenfranchisement (though it would be "voluntary") and general social disruption. And, though you have written this argument off when I have made it in the past, I think that ending prohibition allows white suburbanites to ignore and villify urban minorities who would remain the most visible users of drugs.
I think that we need to revert to a rehabilitative approach to prohibition; abandoning it altogether might not improve much.
By the way, I have heard that, though the sentencing guidelines substantially reduce judicial discretion, they substantially increase prosecutorial discretion. It could be that bias among prosecutors accounts for the longer sentences for minorities.
Anything short of complete legalization will still leave black markets, and their resulting pathologies, in place. Minors would also still be able to buy directly from the street market, and drug use would be unnecessarily dangerous because of lack of regulatory and market controls.
I don't know what you mean when you say that you "think that ending prohibition allows white suburbanites to ignore and villify urban minorities who would remain the most visible users of drugs."
Lastly, if we required that all arms be registered but did not restrict their ownership for non minor, non-felon, and sane citizens, would this offend the second amendment. Finally, what is your view of Gov. Pataki's effort to require ballistic ID's for firearms?
What do you know about this? Where would one find such figures?
Given your cost estimate, I'd say the student's claim regarding the higher costs of the death penalty seem suspicious. Perhaps the costs of the equipment is not spread over its life properly, or perhaps the cost of the equipment is very high?
I've seen that claim made, as well. They are usually referring to the extra judicial resources expended in a capital case, including the numerous appeals.
How is this unique to capitol offenses? Anyone is free to appeal any case, and frequently do. That the appeal and review process is costly all along the pipeline is one of the consequences of our anglo judicial system.
I'd like to get ahold of some real numbers now. This sounds completely bogus to me.
It is unique to capital cases because there are so many more appeals, both federal and state, often brought by non-profit groups, whether the defendant wants it or not. In many states, any death penalty verdict is automatically reviewed by the intermediate court, whereas a non-capital rarely is appealed at all, especially ones resolved by a plea bargain or guilty plea, which are the majority.
Only if other cases are being shut out would one say that the costs associated with the appellate system are predominately associated with the death penalty.
There still are costs associated with the use of appellate courts for these cases. Many states, such as Florida and California, have regional intermediate courts, and could probably have a smaller number of regions without death penalty cases. Similarly, Pennsylvania has 2 intermediate courts with a Byzantine system to determine which types of cases goes to which. It is possible that there would be only 1 without such cases. Also, many states have many intermediate judges, only 3 or 5 of whom sit on any panel. Without such cases, there could be fewer judges on such courts. All of these are the sorts of costs used in making those claims, I think.
I feel it's kind of spurious, as well, but I am just explaining the logic.
That's my understanding, as well, that it costs more to execute someone because of the costs of appeals, etc. Florida has a full-time public defender's office that is exclusively dedicated to handling capital offense appeals.
I don't have a cite, right now. Very busy. I would suggest doing a law journal search on Westlaw or Lexis to find some kind of information on that.
I have to run.
http://www.essential.org/dpic/costs2.html
Sorry, have to work on my html skills.
I tried to do it following the html guidelines but messed something up and the spacing wouldn't behave.
"For the states which employ the death penalty, this luxury comes at a high price. In Texas, a death penalty case costs taxpayers an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years. [3] In Florida, each execution is costing the state $3.2 million. [4] In financially strapped California, one report estimated that the state could save $90 million each year by abolishing capital punishment. [5] The New York Department of Correctional Services estimated that implementing the death penalty would cost the state about $118 million annually. [6]"
Of the six citations referenced 5 (cites 1-5) are from newspaper articles. Not to disparage journalists, but I think more concrete methods of determining costs is warranted when making such claims.
Call me picky.
So either all the non-profit groups and other legal advisers working pro-bono just up and disappear, wiping their hands of the potential injustices done to prisoners wrongly sentenced to life imprisonment--or the costs will still be there.
If the costs are still there, I suppose we'll have folks arguing that it is less expensive to put someone in prison with the parole option than without, or some such.
If the costs aren't there, it means that the non-profit groups have gone onto some other, more glamous cause, now that the states aren't killing anyone. If that's the case, then it seems that poor people are actually better off with a death penalty that attracts interest of competent do-gooders.
I know that. But my point is that either the costs are still there even without the death penalty, or the only way that the poor have a chance at someone caring about them is with the death penalty.
The only way costs would go down, given the equation the rhetoric relies on, is to offer less review, once the death penalty goes away.
Which suggests that much of the poor population now on Death Row would get less justice, not more.
I am not sure. There would be less money to spend on defending all persons, but if enough of the massive amount of resources channelled to the few death penalty cases were distributed around the system, then the average defendant may get somewhat more resources devoted to his case (I don't know if my assumption would hold true, as it is very likely that the states would not use any of these resources for criminal defense, nor that there would be much charitable contributions to defense in that case).
it is here: http://www.uscourts.gov/dpenalty/1COVER.htm
I believe you. I haven't had time to investigate the site, but their main study is the one I quoted from. There are some legislative studies cited in that one, but nothing which helps us understand how costs are computed.
As a first pass, I'd say any study that assumes all costs associated with the death penalty would be a savings, underestimates the costs associated with the system generally. In addition, costs associated with keeping these high security prisoners incarcerated must be included. There are several issues related: if we eliminate the death penalty, what do we do with prisoners sentenced to life who kill guards or other prisoners? Do we build special, self-contained cells?
Are there increased costs associated with increased security needs? Are there increased security needs to begin with?
In addition, there are costs supposedly associated with increased time to try capitol murders seeking the death penalty. What would happen to these staffs? Would they be eliminated? I've yet to see government services (like a state judicial system) actually close shop if one of their tasks is eliminated, rather they simply shift activities to other areas. Is this a cost saving then, or simply a reallocation of resources? And what would these resources be directed toward?
I don't know enough about this area, but am suspicious of any claim that costs would actually decline when government activities are involved.
A sad story from the nation of incarceration.
I don't doubt that the resources could be used elsewhere, my main issue is with whether the cost savings are really there to begin with.
And I seriously doubt there'd ever be a return to the taxpayer of any freed resources, regardless of how small, or large.
I don't doubt that the resources could be used elsewhere, my main issue is with whether the cost savings are really there to begin with.
And I seriously doubt there'd ever be a return to the taxpayer of any freed resources, regardless of how small, or large.
Anyway, I'm also not sure whose confidence would be renewed by removal of the death penalty. Do you mean by providing better legal services to the poor? Or do you mean that by elimination of the death penalty, people would have greater confidence in the justice metted out?
If the latter, I would think there'd be as many people losing confidence as gaining it by omitting death sentences.
Making cyber hate a crime
Local extremists have good reason to
move their Web pages offshore, writes
Joseph Kerr.
PUBLISHERS of Australian Web sites who
incite racial hatred or encourage
cyber-stalking may be liable for criminal
prosecution.
David Fraser, a senior lecturer in law at the
University of Sydney, says the anti-vilification
provisions in the NSW Anti-Discrimination
Act allow for criminal prosecution for inciting
racial hatred on the Web.
"If a Web site exists in Australia, there's no
reason why traditional anti-vilification laws
can't be applied," he says.
Section 20C of the act makes it "unlawful for
a person, by a public act, to incite hatred
towards, serious contempt for, or severe
ridicule of, a person or group of persons on
the ground of the race of the person or
members of the group".
continued:
required to extend the anti-vilification
provisions to material published on the
Internet. However, he believes the
effectiveness of the legislation is in question:
"The legislation is not generally punitive ...
it's more based on education and arbitration.
And only when these things are exhausted is
there any [criminal sanction]."
Anyone convicted of racial vilification under
Section 20D of the act faces up to six months
in prison - but the Attorney-General must
agree to any prosecution under that section.
continued:
publishing on Web sites in the United States,
where they can shelter behind constitutional
guarantees of free speech which are much
stronger than in Australia.
Cyber-stalkers may also be liable for
prosecution under the NSW Crimes Act,
according to Fraser, who says section 562AB
of that act -designed for domestic violence
cases - may be extended to allow prosecution
for cyber-stalking. He says there is a
possibility that if someone was being
harassed in a personal campaign on a Web
site, action could be taken under the stalking
provisions.
But he believes it would be difficult to mount
such a prosecution if the offending Web site
was based outside NSW. Fraser also sees the
possibility of prosecutions of Internet service
providers whose servers carry race-hate sites.
"The idea is to make the provider responsible
for the hate speech that appears on their
service and force them to shut down their
relationship with the customer," he says.
pseudoerasmus,
I agree.
It's not just freedom from state interference in private lives. It's everything. American lives are more regulated not just by state actions, but also by political correctness and corporate prerogatives. Americans are simply not as free as popular legend would have them.
The USA is not less laissez-faire than countries in SE Asia. Where did you get that idea?
Canada, Australia and the UK are also oppressed by political correctness.
No, PC is not yet a legal restraint. But that's the problem with you people. You apparently think that if there is no formal, legal and institutional restraint, then there must be freedom.
But in places where the employee has equal power with the corporation (for example, in my area), a good economy makes things about as free as it gets anywhere in the world.
I don't understand the bit about PC demands affecting freedom.
You may be curious to know (if you don't know already) that Canada's Charter of Rights is a rather peculiar instrument. All of the rights and freedoms protected in it are subject to section 1 of the Charter, which allows these freedoms to be subject to "such reasonable limitations as can be demonstrably justified in a free and democratic society." Moreover, the Charter contains a notwithstanding clause, which can be invoked by the federal and provincial governments to override the Charter. Hence, Quebec's language laws, which require that French be predominant on every commercial sign in the province -- including Montreal's Chinatown, for example.
Pseudo,
I agree that strident polical correctness tends to thrive in most Anglo urban settings. Still, I tend to associate it with university students and funky downtown enclaves. In Toronto, for example, political correctness is far less tolerated the closer you get to the suburbs, more upscale neighborhoods, or downtrodden locales.
Jones,
The problem with section 1 is that it tends to lead to some rather subjective decision making, very often divides the Court, and fosters unduly lengthy judicial opinions. Courts not only have to articulate the subject matter of rights but also go through the exercise of deciding what amounts to a reasonable limitation on those rights. You know the old joke: every time a statute uses the word reasonable, lawyers everywhere make bundles of dough. Hopefully, Charter adjudication will become somewhat clearer in the ensuing years. (The Charter only dates to the eighties).
It's pretty clear that the law on harassment under Title VII has had a gross effect of censoring speech in the workplace. As Stossel pointed out, "the most sensitive among us get to determine what speech is acceptable." I have to agree that it's problematic.
Seems reasonable to me...
ka-ching $$$$
Well, Jonesatlaw, for one, you can't even see "unedited" films on regular television in your great fucking country of the USA. (Yes, I know it's not because of state restrictions.) You can't tell certain kinds of jokes. How about the miserly two-week vacations? Yes, one has more freedom if one is not indentured to work. (Why anyone who has the option of working somewhere other than the USA, continues to work in the USA, I have never understood.) Except in this economic boom time, people are afraid to change jobs because of healthcare. Amazingly high drinking age. How easily one's property is seized if you are caught with a relatively small amoung of drugs. How more and more Americans are compelled to live in cul-de-sacs containing three dozen identical houses, found off 50-lane "roads" with no crossing lights and no sidewalks, but with plenty of 30-screen cineplexes, hangar-sized penny stores, a choice of 18 chain restaurants; from these isolated cul-de-sacs with no cultural life these Americans commute to work located 20 miles down the "road" at "industrial parks" in order to remove themselves still further from human contact.
As often as not, the rich and the poor meet in attitude...
Of coures it does. You're just conditioned to behave under such as restraints that you don't recognise the unfreedom.
But in that case, any social norms are a restriction on freedom. I see no reason to think that certain class expectations of PC behavior (which you also overstate), is any worse than the restraints of social norms in other countries.
Lady,
Oh, sure. But that's hardly a dreadful restriction--and it will come around again. As it is, we mock these restrictions constantly.
You start to miss things like the functional telephone system, reasonable credit, and cheap gas.
As a freelancer, I suppose that you can afford the luxury of mocking harassment law. For most schmucks, it's something they have to be increasingly careful of.
Jones,
Gimme' a break. The sort of speech that Title VII restricts is quite distinct from calling the boss a "bozo," or impugning your company's reputation. Title VII has come to regulate what used to be casual discourse between individuals in the workplace.
Yeah, but most of us who want them have cable.
"You can't tell certain kinds of jokes."
True.
"How about the miserly two-week vacations?"
I agree.
"Except in this economic boom time, people are afraid to change jobs because of healthcare."
I had thought workplace mobility had been increasing even before the boom.
"Amazingly high drinking age."
Damned straight.
"How easily one's property is seized if you are caught with a relatively small amoung of drugs."
Annoyingly true.
"How more and more Americans are compelled to live in cul-de-sacs containing three dozen identical houses, found off 50-lane "roads" with no crossing lights and no sidewalks, but with plenty of 30-screen cineplexes, hangar-sized penny stores, a choice of 18 chain restaurants; from these isolated cul-de-sacs with no cultural life these Americans commute to work located 20 miles down the "road" at "industrial parks" in order to remove themselves still further from human contact."
This is silly. No one is "compelled" to live like this. Almost every major metropolitan area has an artier area with more architectural variety where it is possible to live usually cheaper than in similar areas in Europe. It is just that living in the burbs is *cheap*, gives you one hell of a lot of space (I had a visitor from Korea in my house this summer, who said that my very modest suburban ranch dwelling with a comparatively small yard would sell for over a million dollars in Korea), and it is safe place to raise kids. Americans by and large *like* shopping malls, multiplexes, chain restaurants, and the like. You are free to chalk this up to bad taste if you like, but to describe it as a "lack of freedom" doesn't make sense.
You're joking? Money, for starters. If you're in demand, you'll have a much better life here than anywhere else--the French and the English might treat their masses better, but they apparently do that at the expense of the highly skilled. Who say "fuck you" and come here, in large numbers.
Flexibility--jobs aren't that hard to come by. If you don't like your job, you can find another.
Then there are the intangibles. The knowledge that you can fire at least 50% of the useless shits that work for you if they don't perform. The knowledge that your abilities and ambition have at least a fighting chance of being rewarded.
Lord, I can't see why anyone with talent would work anywhere but here.
Message # 601 Maybe because the rich and the poor have much more freedom than the middle class.
But the USA has the usual norms, and then some more. For example, people in the USA are prone to suspecting others of sexual deviancy. What ever happened to that case of a mother who decided to photo-document basically her whole life, including scenes of her young daughter nude and bathing? The photo-developing shop called the police on her and she got arrested.
# 605
I'm not talking Zaire. Many countries have those things (except cheap gas) and one is still freer.
As a freelancer, I suppose that you can afford the luxury of mocking harassment law.
No, I understand the limitations. But it is mocked regularly in all of our major entertainment genres. It's just a temporary thing--at some point, the pendulum will swing back.
Just know that it is a distortion. All of those components certainly do exist in various suburban settings, but it is quite easy to choose other types of surroundings.
But the USA has the usual norms, and then some more.
No, we have other norms that are far less repressive.
Rask raises another point I was going to make--you might bitch about our movie editing, our drinking ages, our drug laws--but they are imposed by us, not the government. If enough people wanted to see Eyes Wide Shut on NBC, it would happen. If the drinking age were sufficiently onerous, we'd drop it. If we didn't like the suburbs, we'd all build cities.
So the majority of Americans want the restrictions that you scoff at, which is why we have them. What makes us freer than average, I think, is our ability to dump the restrictions we don't like without worrying that our government leaders will disapprove. This fluidity is not the norm in other countries, I think.
You find the American lifestyle stultifying and boring. Fair enough.
No, that's not what I said. I said that Americans are less free to do a variety of good and desirable things.
However, it is the result of free choices of Americans.
It is not a totally free choice. Urban planning in the USA, it seems, is for concentrating the maximum number of people around strip malls and other commercial developments. In fact in many cases it's commercial developers, not normal human beings, which determine how and where millions of Americans live. Just because Americans are not literally compelled to move to such places, doesn't mean that the menu of possiblities hadn't been rigged and restricted by someone else earlier.
Raskolnikov, your objection on the same basis is answered above as well.
#608
But as far as I know, in the 100-channel wasteland that is cable, only the premium channels showing the newest releases are "unedited". Nonetheless it is definitely less freedom to have to pay between $30 to $80 a month just to see Uma Thurman's mammary amplitude in Dangerous Liaisons.
Actually, the choice of developing a new location is first made not by the commercial developers, but rather by the homeowners (and to a lesser extent the homebuilders). The commercial uses are never the first thing into a new area, but rather require a population base to support them. The American people strongly desire (and have ever since WWII) to own a single family house on a large lot, preferably one that has never been lived in before. The government subsidizes this choice in many ways, through the home-owner's exemption and road construction mostly, but the decision to expand the suburbs indefinitely has been that of the homeowner.
You're joking? Money, for starters. If you're in demand, you'll have a much better life here than anywhere else....
Hence, the principle. Study in the USA. Work in the USA. Make lots of money. Then run.
As for better life, one is likely to make more money in the USA, but you'd have a better time spending it elsewhere. But that doesn't have anything to do with freedom.
the French and the English might treat their masses better, but they apparently do that at the expense of the highly skilled.
My dear Calgal, the English don't belong in your sentence.
Flexibility--jobs aren't that hard to come by. If you don't like your job, you can find another.
Spoken like someone with no knowledge of business cycles....
#614
No, we have other norms that are far less repressive.
Than Iran, I agree.
Rask raises another point I was going to make--you might bitch about our movie editing, our drinking ages, our drug laws--but they are imposed by us, not the government. If enough people wanted to see Eyes Wide Shut on NBC, it would happen. If the drinking age were sufficiently onerous, we'd drop it. If we didn't like the suburbs, we'd all build cities.
I've already pointed out that most of the restictions I've been talking about are not state restrictions. See #583.
So the majority of Americans want the restrictions that you scoff at, which is why we have them.
Yours is of course the same principle by which one could say that if enough people didn't like the freedom of speech, there might be enough support to repeal the first amendment. The point is, it's the minority that's always affected by the absence of certain freedoms.
But I don't agree that all restrictions exist because the majority approve of them. The abortion of the new suburban planning is just an example.
I will provide evidence to the contrary of your first two sentences, after this weekend.
I have often wondered if such a system of externalized costs really engenders freedom of choice, or whether, as PE suggests, it merely predetermines the choices on a very narrowly defined menu.
Well, this is a more valid point. But I would still argue that other types of development are widely available for prices that are the cheaper than those in Europe. The mere fact that land is so cheap in the US gives us a lot of freedom that Europeans don't have.
"But as far as I know, in the 100-channel wasteland that is cable, only the premium channels showing the newest releases are "unedited". Nonetheless it is definitely less freedom to have to pay between $30 to $80 a month just to see Uma Thurman's mammary amplitude in Dangerous Liaisons."
Several non-premium channels don't have commercial interruption, and a smaller number (Sundance and IFC) are not edited. But I'll make another argument, and say that US network TV, in all of its edited and censored glory, offers a much better and broader selection than the foreign network TV I have seen. The British Networks, for instance, may not edit American movies, but they show damned few of them, and have much worse programming. I thought US networks were bad until I lived in England...
When I talk about restrictions on freedom, I do not mean only state restrictions on freedom.
I'm not talking about Zaire or Bolivia or Papua New Guinea.
#616
I have not ONCE criticised the "dominant aesthetic tastes", though I do criticise these often enough, in other contexts.
Be my guest. I work in the field, and can give you plenty of examples of far-flung housing developments that are built without any stores, shopping centers or other commercial development, which is only added later. Further, I know from personally sitting in on numerous such meetings that the first item any business looks at to decide where to locate is the number of people in the surrounding area, followed shortly by their income levels. People do not move to be near shopping; stores locate to be near people.
But this is exactly the opposite of what you originally said: "Why anyone who has the option of working somewhere other than the USA, continues to work in the USA, I have never understood. "
As for better life, one is likely to make more money in the USA, but you'd have a better time spending it elsewhere.
That's a value statement--and one I disagree with. But then, I am a heathen and a materialist.
Spoken like someone with no knowledge of business cycles....
No, I do have a very minimal knowledge of business cycles. But given that you were (whether you knew it or not) speaking only of highly skilled workers (people who have a choice), I think it is fair to say that skilled workers in the US have always had more options than skilled workers in any other country, taken as a group. When we have downturns, it is tougher, obviously. But no matter how bad things are, the skilled worker generally doesn't suffer too badly and has more flexibility in job and working choices than in any other country I can think of.
The point is, it's the minority that's always affected by the absence of certain freedoms.
Yes, but I'd say in America, everyone is in a minority at one time or another. Whereas other countries, the minority tends to be somewhat rigidly defined.
The home-owner's exemption is neutral as to what types of development occurs, though it favors ownership over renting. You are entitled to it, whether you buy an existing house in a city or a brand new "McMansion".
The road building certainly does subsidize new suburbs, although some have argued that its role is reactive (i.e., little is done before the suburbs already exist to some extent).
"I have not ONCE criticised the 'dominant aesthetic tastes'"
What would you call this?
" from these isolated cul-de-sacs with no cultural life these Americans commute to work located 20 miles down the "road" at "industrial parks" in order to remove themselves still further from human contact."
This certainly implies that part of your criticism is based on the quality of choices that people make.
And my hackles aren't raised.
I do think you made several good points, and I don't think most of us are equipped to compare US freedoms with those in other countries, but I do think you seriously underestimate some offsetting freedoms that Americans have in greater abundance.
I generally agree with your points. However, I have noticed that some of the most ardent defenders of the "American way" are themselves immigrants.
Well, that description is certainly pejorative, but again, the point of the description was to show that people's residential choices are becoming more restricted.
No, I didn't underestimate the offsetting freedoms. I mentioned that the USA has more economic freedom than Western Europe, probably more than all other developed countries. And that's a good thing. But still....
Dantheman might be best equipped to answer the question, since he is in the field. There seems to be some sort of (imo welcome) Jane Jacobism taking hold in some suburbs.
I am not seeing this in Minneapolis. We are still sprawling. There is a trend toward *upscale* strip malls, with a fountain, an Italian deli, a breadmaker, and a coffee shop, but malls are still pretty big. Of course, we are the home of the shopping mall, and it gets too damned cold to shop outside several months of the year.
In the seventies and eighties there was a rush of people out of the cities and people who grew up in suburbs would rarely consider transplanting themselves to the city. Much of this was a reaction against the danger and decay that seemed to bring down many cities at the time. Now, though, as cities become more adept at controlling their problems (reinvigorated downtown cores, crime reduction, etc.) city life is becoming more palatable; and the stereotypical suburban life is becoming less appealing.
It's a rather mixed bag. Some cities, including my Philadelphia, have been trying, with some success, to recapture the upper income people by creating areas which will be attractive to them, including special services and extra policing. On the other hand, the flow of middle income people from the cities has not stopped. Also, a lot of the upper income people tend to leave the cities once they have kids, as they want the yard space and better schools.
Another factor is the jobs location. Many office jobs have left the cities for suburbs, to reduce taxes and cost of renting office space. Also, as new office space is built, clean suburban land is preferred rather than reusing old urban industrial sites, with the added cost of cleaning them. Their employees tend to follow the jobs into the suburbs.
Of course, cities are becoming more suburban and mall-oriented themelves, so my above observations may be moot.
Many office jobs have left the cities for suburbs, to reduce taxes and cost of renting office space.
This, too, is changing in SF. It is certainly why they are upping the number of upscale apartments in the City. These are generally singles and dinks who will then move back out to the suburbs when they have kids. But for now, they think it's cool to be able to live and work in the City.
I don't know how representative SF is, though. Office and apartment rentals are both expensive--it's just that everyone is currently very well off.
You previously mentioned the alternative of living in Minneapolis's tony part. How long has it been tony? Philly has had several areas become tony in the last few years, especially Manayunk, which was a wasteland 10 years ago, and the area near the Art Museum north of Spring Garden Street, which was working class rowhouses 10 years ago. Yes, the suburbs are still expanding, but new tony areas are being built in the cities, too.
I should have said evidence to contradict your first sentence in #617, not also the second sentence.
I didn't say everybody lives in these strip-mall-environments. I said more and more are doing so.
I also didn't say there were no unblighted residential developments.
But the general trend is otherwise.
I know from personally sitting in on numerous such meetings that the first item any business looks at to decide where to locate is the number of people in the surrounding area
Of course businesses must take into consideration the population of the larger area. No one said you can build a mall in the Sahara and the folks will follow.
Whether businesses follow or lead householders (and I'd say both cases exist amply), the outcome is often the same. Zoning and suburban planning are such that even suburbs originally without strip-mall blight is converted by development into strip-mall blights. When more and more suburbs are thus blighted, the menu of residential options becomes more restricted, even if businesses have come to where the people are.
I suspect SF is representative enough, as the same thing is going on to some extent in most big cities I know to some extent (say, Philly, NY, Boston, Chicago, DC -- Baltimore's still an exception). Many of the upper income city dwellers also work there and want to avoid the commute.
Most of the big cities haven't lost downtown office jobs (Philly is an exception), but most of the recent job growth is in the suburbs. I suspect (but don't know) that if you compare the amount of top-quality office space in SF to its suburbs over time, the city has grown slowly, but the suburbs have grown by leaps and bounds over the last 20 years.
Dantheman,
Well, I gather many people are forced out of the city because of the expense involved in buying or renting a house or apartment when space is at a premium. I personally find it strange when a suburb reaches a size of 200,000 people or more and lacks a distinctive downtown core and the eclectic charms of a city. And I think that many people share my feelings in this regard. Hence attempts to create a faux downtown, or, recreate other aspects of city life.
Incidentally, I grew up in a suburb of a suburb which was, in turn, incorporated as a city/municpality of its own; and was named after a real estate development company to boot.
Oh, it's growing still in the suburbs, of course. What is interesting is that there is any growth at all in the City. For years, there was almost none. But recently they have started to add both office space and lovely new apartment complexes. That's what is new.
At least for the past couple of decades. There are some parts of town that the city has focused on revitalizing (mostly downtown), but Uptown has been hip for quite a while. Almost every part of town which borders a lake is one of the trendier parts of town.
Unfortunately, I suspect you haven't seen recent building trends in the Philly area. Places like Collegeville, Yardley, Newtown (Bucks County), Blue Bell, Marlton NJ? Yes, there were small existing communities there, but they are being drowned out by the McMansions. There are nice older suburbs like Bryn Mawr, Elkins Park, and Drexel Hill, but that's not where the new development is going on.
645, I don't disagree with much other than the issue of which came first.
I suspect very few people leave cities because the expense of buying or renting a house goes up, although some booming cities (Phoenix? Las Vegas? San Antonio?) may conceivably fit that mold, simply because staying put usually costs less than moving. New housing is usually way more expensive than used (a rule of thumb I've heard is that the value of a new house drops 10-15% when the first resident moves in).
People usually leave the city due to reasons other than housing costs, frequently crime or schools, sometimes to reduce commuting to a job. Taxes can play a role (and has in Philly), too.
During the late s70s and the 80s there was considerable office development in the SF burbs. The driving forces for such growth were similar to those elsewhere (cheaper land, growth encouraging development regulations etc) but in SF you need to factor in City development policies that limited the amount and height of new office buildings. These limits forced office developments, that would have preferred an SF location, to locate in the burbs.
Job growth in SF is considerable but the shortage and cost of housing is pushing residential development further out. People are moving so far out that a 90 to 120 muinute commute in their single occupancy car is not all that unusual.
Did anyone read Ferguson v. City of Charleston?
The one thing about the City, though, is that it is really the only place that has a decent amount of upper-income apartment complexes. In the entire South Bay, for example, there are only three apartment complexes with rentals over $1500/month. And there's only two that I can think of from Mountain View up through San Mateo. Occupancy is at something approaching 99%, too.
So I think SF sees a growth opportunity, and one in keeping with its basic demographic.
And the increase in SF startups is quite new, actually. For years, startups were the domain of South Bay, mid-peninsula--and occasionally up in the North Bay (San Rafael).
It's an interesting development, but I certainly wouldn't think that SF is all that typical.
re Message # 656: I read the majority opinion but only skimmed the dissent.
I thought the reasoning interesting. Of course, the right to privacy claim was bound to fail, IMO.
Austin is another market where the price of housing in the central city is equivalent to, or higher than that in the surrounding suburbs. In part, this might be associated with the fact that it is the capitol of the state, with a large number of temporary residers that fluctuate with government sessions, and the fact that it houses a major research university that draws thousands of students to the area, all seeking housing that is centrally located.
I take it, if you were using proper English, you would have written "Pseudoerasmus needs to support some of his assertions with evidence". As is your sentence sounds like my assertions deserve applause and backing from people.
Which assertions are these?
As for assertions that need some support (evidence), I believe you've yet to support one of them with any hard information. I would settle for some clarity on what you meant by freedoms, what you suggest others have that the US doesn't, and what comparisons you have in mind (some of those dozens of countries you aluded to).
freedom = the ability to do what you like
there is less of it in the USA than in Western Europe, except in the ability to set up and run businesses
As for freedom = the ability to do what you like, tell us more about what so many others can do that cannot be done by the average, dumbstruck American. I await your more cosmopolitan wisdom.
You also suggested you were talking about countries outside of Western Europe.
Btw, the legal drinking age of various countries is something I personally have never been interested in discovering, and would dispute has much to do with "freedom" in any significant sense of the word. But then, perhaps it is one of your key indicators.
570. pseudoerasmus - 3/24/00 12:27:11 PM
Americans bleat endlessly about how much freedom they have, when in fact they have rather little compared with dozens of other countries
Here I was expecting something much more earth shattering than the ability to drink at 16 and the ability to watch "unedited" television (whatever that might entail).
I admit the generous vacation policies standard for companies in many Western European countries is to be envied, however.
Those are certainly some of them. I've named others.
You also suggested you were talking about countries outside of Western Europe.
That's because of your poor language skills.
I recommend a more thorough reading of the Ferguson dissent, which lays solid groundwork for a reversal, imo. Apparently, the factual circumstances were not as clear as the majority suggested.
pseudoerasmus,
One of the points I wanted to make wrt the standard of living in European cities: In Prague, we have a spacious apartment in the city, as well as a log cabin on three acres of rugged forest about twenty-five minutes west of the city. This is a fairly typical standard for middle-class Czechs (although few have as large a plot for their weekend cottages - ours is unusual because almost none of it is good for gardening). This European notion of having a workaday abode in the city with a small weekend cottage in the country has never caught on, here, except among the elite of big cities like New York, where people have places in the Hamptons, or Los Angeles, where a number of people have cabins in the San Bernardino Mountains. But even in L.A., the workaday norm is a place in the burbs, which have pretty much devoured the countryside.
I wondered if you had any thoughts on this. Does the middle class of the Asian subcontinent follow a more European trend, or do they prefer something closer to American suburbia?
I skanned the dissent and saw the challenge to the factual record used by the majority. I'll examine it more closely latter this weekend.
Btw, I've made it to the final round of the advanced moot court competition. Zero hour is Tuesday evening.
It also seems that my law review comment has a prayer of getting published. I'll know more about that in a couple of weeks.
Keep your fingers crossed for me!
Thanks.
But that still doesn't make your comments any weighter.
Congratulations! On both.
I would say that the "suburb" is primarily an American notion.
your notion of "freedom" is juvenile considering the nature of this thread.
That's because you're an idiot. I'm talking about the freedom to do things as one sees fit. There are restrictions on those everywhere, but there are more of those in the USA than in most Western European countries, except in the sphere of economic freedom.
I assumed that you were going to argue that there were restrictions on individual liberty in the US that were something other than self imposed.
None I have talked about are self-imposed, if by "self" you mean individuals.
Political correctness is a tempest in the academic teapot. The chilling of "free speech" in the workplace is equally nonsensical.
You lack perspective. American society, at least urban society, is pervasively PC.
The workplace has always been a forum for the employer only. We hear the parade of horrors concerning a hostile work enviroment, but precious little actually results from court action. Mostly the actual restrictions come from over-anxious human resources departments, happy to find another way to insure their value to the company by blowing up the issue into a boogeyman to scare execs and obnoxious employees.
And insofar as that is true, that's less freedom.
I have mentioned a lot more upthread. Here is a running tally at the moment, but they're enough.
all manner of "voluntary" censorship on radio, television and cinema-none of which is effective to restrict adult access to whatever one wants.
short vacations-granted
inability to move about unmolested in certain quarters of most large cities-overstated. If one is restricted to walking or public transportation, the case is stronger. Even so we are talking about a rather limited number of cities, and certainly not the majority of the population.
higher liklihood of being accused of sexual deviancy, for example, if one takes a photo of one's child in the nude. The likelyhood of this is small. What evidence is there of this other than several aberrant anecdotes? Sexual deviancy is almost an oxymoron in some areas of America. Witness the Sisters of Perpetual Indulgence, Mardi Gras, Las Vegas etc. We do not have the attitude of Europeans towards "sex workers" etc. We are more puritanical than most developed nations with regard to sex, but its hardly the middle east here.
political correctness, which restricts personal freedoms in multiple ways- Which you have claimed is endemic to the Anglophone world. I would argue that it is concentrated in social strata and institutions you are most immersed in. There are a wealth of non-PC institutions and businesses doing quite well all over America, thank you. Hooters lives and thrives, as does Easy Rider magazine, Low Rider, and the Sturgis motorcycle rally.
a restricted menu of residential options I would argue that they are less restricted than Europe, even though the majority preference for suburbs doesn't suit your taste.
many Americans fear changing jobs lest they lose healthcare insurance less of a worry than you might think. McDonalds offers health care to permanant employees in my city.
higher likelihood of having one's property seized for possession of relatively small quantities of drugs Civil forfeiture is a problem area. However, you overstate the reach of forfeiture. Only property used in the transport or manufacture of drugs, or purchased with its sale is subject to seizure. If the amount is small, the chances of seizure of one's home or vehicle is extremely small.
being monitored at work For what? Foreign employers don't monitor their employees? Be more specific
higher likelihood of being sued for a variety of alleged offences Meaningless generalization. It also means greater access to the courts to sue others for wrongs done to you. Certain suits are far easier in other countries. Witness Britain's recent history regarding libel.
overzealous work-place harassment rules & laws another meaningless generalization. Some specific evidence please.
anti-sodomy laws in some states granted that they exist. Since both partners are assumed to consent, enforcement is academic.
Pseudo:
You're really being quite goofy with most of your sniticisms.
So you can see tits on Italian TV. Whoo-hoo. And the Arnold Schwartzenegger film Predator is banned in Germany.
For god's sakes, be serious.
all manner of "voluntary" censorship on radio, television and cinema-none of which is effective to restrict adult access to whatever one wants.
But it's certainly annoying. And it's still restrictions on freedom.
By the way, you can get pornography in Iran also, if you know where to find it.
inability to move about unmolested in certain quarters of most large cities-overstated. If one is restricted to walking or public transportation, the case is stronger. Even so we are talking about a rather limited number of cities, and certainly not the majority of the population.
Please, I am talking about walking and generally moving about without armed escorts.
Limited number of cities? Yes. But I can assure you that any German or Japanese can walk in any part of any German or Japanese city without problems. Can't say the same about Americans.
higher liklihood of being accused of sexual deviancy, for example, if one takes a photo of one's child in the nude. The likelyhood of this is small. What evidence is there of this other than several aberrant anecdotes?
The number of incidents is small, but the fact that they happen at all, and the effect they have on behaviour, reduce freedom.
Americans also have to be cautious about their neighbours snitching.
We are more puritanical than most developed nations with regard to sex, but its hardly the middle east here.
I will certainly concede the USA is freer than....Iran.
I have nothing against suburbs if you're talking about Rye, NY or Chestnut Hill in Philadelphia, or even Bethesda, MD -- which actually has small streets, sidewalks, shops not the size of airports, and a walkable environment.
It's the strip-mall-suburbs I've been talking about, like Rockville MD or places in northern Virginia.
Most of you have assumed that I'm being anti-American and mocking American tastes. But I'm not. I actually think better of American tastes than you give me credit for. For I dispute that the majority preference in the USA is for these strip-mall-sidewalk-less-surburbs where one lives in McHouses; commutes by car to work in McOffices located in "industrial parks" barely distinguishable from strip-malls; and shops in small city-states filled exclusively with hangar-sized chain stores. More and more Americans have no choice but to live in these places, partly because more human alternatives like Bethesda or Rye are for the rich, partly because they lack influence over the urban planning & zoning decisions of their communities.
As for residential options in Europe, they are really only restricted in terms of size (in some countries only). Most European cities have fairly leafy outskirts available, if more greenery is what one wishes.
A few cities in Europe have become unaffordable for ordinary people to live in, such as Paris, but that's an exception.
many Americans fear changing jobs lest they lose healthcare insurance less of a worry than you might think. McDonalds offers health care to permanant employees in my city.
There's an economic boom going on right now, and an increase in benefits to attract people.
The innovation of reading employees' email or monitoring their Web-serving has not yet come to pass.
Meaningless generalization. It also means greater access to the courts to sue others for wrongs done to you.
True, but I'm talking about what is often called "frivolous" lawsuits, as well as ludicrous punitive damanges. These problems are simply not part of the discourse of European politics, even though the right to sue exists.
Witness Britain's recent history regarding libel.
Yes, the UK certainly restricts freedoms, especially of press and of speech, more than the USA.
overzealous work-place harassment rules & laws another meaningless generalization. Some specific evidence please.
Ask Ladychaos, he seems to know a lot about these things.
anti-sodomy laws in some states granted that they exist. Since both partners are assumed to consent, enforcement is academic.
But cases of enforcement do exist, especially when prejudicially applied to gays in the south.
Germany does ban certain things, such as the open denial of the Holocaust, but I'm sure Predator has not been banned in Germany.
web-serving = web-surfing
And remember, you can see all the sex you want on public television, which is funded in part by our government.
Pseudo:
Predator is banned in Germany. Look it up on imdb.
Pseudo:
It appears you're right. I am trying to find the right film.
I believe Germany must have revised its standards in the last year. I posted a list of film banned in Germany about a year ago -- I was surprised to see movies like predator and 48 hrs on the list -- but now they're not on the list.
Here's an abridged current list from IMDB:
Titles with certificate: Germany:(Banned)
All Quiet on the Western Front (1930) 8.3/10 (1394 votes)
Double Exposure (1982)
Grande illusion, La (1937) 8.5/10 (909 votes)
...aka Grand Illusion (1938) (USA)
Guardian, The (1990) 4.0/10 (120 votes)
Halloween II (1981) 5.2/10 (1210 votes)
...aka Halloween II: The Nightmare Isn't Over! (1981) (USA: video box title)
Hellbound: Hellraiser II (1988) 5.7/10 (637 votes)
...aka Hellraiser II (1988)
Ilsa, She Wolf of the SS (1974) 3.9/10 (104 votes)
Motel Hell (1980) 5.1/10 (172 votes)
Night of the Living Dead (1990) 6.3/10 (387 votes)
Phantasm (1979) 6.6/10 (453 votes)
...aka Never Dead, The (1979)
Prison (1988) 4.9/10 (61 votes)
Tales from the Darkside: The Movie (1990) 5.5/10 (204 votes)
Texas Chain Saw Massacre, The (1974) 6.5/10 (1539 votes)
...aka Texas Chainsaw Massacre, The (1974)
Texas Chainsaw Massacre 2, The (1986) 4.5/10 (326 votes)
...aka TCM 2 (1986) (USA: abbreviated title)
...aka Texas Chainsaw Massacre Part 2, The (1986) (USA: video box title)
If you check the IMDB, many violent R-Rated pictures get a 18 Certification in germany, but only when cut heavily. A bunch of movies I've checked had the notation: "Germany-18 (heavily cut)."
Sorry, but these certification numbers in Europe aren't billed as in the USA. No one has any idea what "certification" a particular movie generally gets.
The point is, Pseudo, some films avoided the total ban by cutting out objectionable parts.
I find this whole line of argument rather silly. But the more "free" countries of Germany and England *ban* some movies. In America, no movies are banned. At most they receive X-ratings.
...of Robocop.
Pseudo:
I suspected it was RoboCop. I found RoboCop too, and noted the 16/18 rating.
But that's not the film I was talking about.
I don't think I've actively included the UK. I've said repeatedly, for example, that there are restrictions on freedom of the press and the speech in the UK, plus as much PC nonsense as the USA.
I still see no reliable evidence that Germany has banned anything, except as related to Nazis and the Holocaust.
#704
I'm not talking about sexual activity which borders on criminality. I'm talking about perfectly innocent activity, such as photographing your child in the nude just as a matter of routine photographing, which has been prosecuted in the USA.
As for neighbours snitching, I know people who let their child walk naked on the beach, and the police were called by some neighbours of theirs. I've several stories like that.
The reason I looked up Robocop is that I saw that in Germany first. The version I saw is identical to the one available in the USA.
Limited number of cities? Yes. But I can assure you that any German or Japanese can walk in any part of any German or Japanese city without problems. Can't say the same about Americans.
I've come to believe that this is a shibboleth. I routinely go to what are called dangerous neighborhoods in NYC--the South Bronx, East New York--via subway and bus without a bit of difficulty. ANow it may not be fair to use a city as safe as New York as an example, but this canard is most frequently peddled wrt NYC.
The Japanese just have to stay out of the subways, and the Germans away from soccer stadia and Turkish neighborhoods.
The emphasis on cars misses an important factor. Americans are more dependent on cars partly because our population isn't packed together like sardines. Mass Transit is less viable when population densities are lower. This is a tradeoff that I daresay most Americans are more than willing to make. And the flip side is that cars are so affordable that it gives Americans more flexibility (or freedom) to do things like drive across town to eat, stay out late (most European mass transit severely scales back services as the night wears on), or drive away for the weekend (partly compensating for those shorter vacations - we can drive to a lot of vacation spots over the weekend). I think it is disingenuous to state that car ownership shows
a restriction of freedom, when in fact car ownership expands freedom.
The most significant restriction Psuedo mentions is related to crime. The freedom to walk alone at night through almost any part of the city is a great one, and one I think too many of us have grown used to not having.
Japanese subways and Turkish neighbourhoods in Germany are completely safe. As for soccer/football stadiums, just stay away from those where Brit yobs congregate....
Have you never noticed that freedom of thought is infringed on by fear of censure?
PE: "How about the miserly two-week vacations? Yes, one has more freedom if one is not indentured to work."
Fuck, yes.
"(Why anyone who has the option of working somewhere other than the USA, continues to work in the USA, I have never understood.)"
Some professions can only be pursued to their fullest extent here, which is why people in those professions are drawn here.
PE: "Study in the USA. Work in the USA. Make lots of money. Then run."
Not in the sciences, which regularly import top-level people from Germany, England, India, China, and Africa. (And I don't mean just postdocs.)The US is the place to be, not least because, relative to Europe, the US does not regulate the shit out of every single thing scientists use or produce.
Rask: "This is silly. No one is "compelled" to live [in a faceless suburbia]. Almost every major metropolitan area has an artier area with more architectural variety where it is possible to live usually cheaper than in similar areas in Europe. It is just that living in the burbs is *cheap*, gives you one hell of a lot of space (I had a visitor from Korea in my house this summer, who said that my very modest suburban ranch dwelling with a comparatively small yard would sell for over a million dollars in Korea), and it is safe place to raise kids. Americans by and large *like* shopping malls, multiplexes, chain restaurants, and the like. You are free to chalk this up to bad taste if you like, but to describe it as a "lack of freedom" doesn't make sense."
But it makes perfect sense. Other Americans’ choices constrain mine. From a practical standpoint, the majority determines how the minority must live. For instance, when my husband was hired by a company in NJ, we had to find a place to live that met my (minority opinion) requirements: trees, good architecture, individually-owned stores, foreign restaurants, foreign people, blacks, Jews, easy access to a train, not too many yahoos. It had to be within a half-hour commute or so to my mate's job. The schools had to be decent and the streets had to be safer than where we were living before (Philly). We had to be able to afford it. In the end, we found exactly one town that met those qualifications.
Chaos: “As a freelancer, I suppose that you can afford the luxury of mocking harassment law. For most schmucks, it's something they have to be increasingly careful of.
As a freelancer, harassment law is pretty much all she is protected by.
Scary and repulsive. And don't forget all those daycare molestations and satanic ritual abuses in the '80s, for which people who were convicted of crimes they or their victims temporarily “forgot” are presently in jail.
CG: "you might bitch about our movie editing, our drinking ages, our drug laws--but they are imposed by us, not the government."
They are imposed by you, and punished by a government representing you. Not me. But don’t worry, someday you’ll discover a minority you belong to and everything will become clear.
Often said, but I don’t believe it. Property taxes in Philly are low—very low, for a major city. The problem is schools, crime, and to a lesser extent, income tax. Anyone who can earn a reasonable living leaves and pays much HIGHER property taxes in the suburbs, where they won’t have to send their kids to private school ($7-10K/yr), their auto insurance will be lower, and they won’t get mugged on the way to work. Philly charges something like 5.83% on income, unless you’re self-employed, in which case it’s more (because of the way the tax is figured). Even so, I bet people would stay if they felt that that bite paid for schools and adequate policing. And maybe filth mediation and some of the exorbitant cost of public transportation.
Jones: "However, the idea of the neighbors "snitching" on one another over their sexual activity is nonsense. The only prosecutions I know of relate to public sexual activity, prostitution, child abuse or the abuse of animals."
Oh, is that all. When was the last time you saw a mother spank her child in public?
PE: "there are restrictions on freedom of the press and the speech in the UK, plus as much PC nonsense as the USA."
Judging from what their journalists write, the British seem to have made a religion out of worshiping Freud and demonizing Israel.
The repressed memory crap and santanic abuse were localized outbreaks of hysteria. Going from them to the general state of affairs concerning the relationship of the state to parenting is akin to evaluating relgious life here on the siege of Mount Carmel or the Nation of Islam.
but most of the restrictions he names are piddling, inconsequential things like sodomy laws, which have a symbolic value but hardly restrict anyone from "doing what they want to do".
Well, I don't think I've said all the restrictions on freedom are oppressive or intolerable. Some are clearly only nuisances, but others are pretty major, such as the residential stuff I've talked about, or the vacations.
I will reiterate that Americans are generally able to live in any sort of housing and architectural style they choose, in almost any type of residential area, for less than what choosing such residences would cost in a European metropolitan area.
I disagree. The primary restriction on European residential options is the size of the abode, not affordability or type of area.
The emphasis on cars misses an important factor. Americans are more dependent on cars partly because our population isn't packed together like sardines. Mass Transit is less viable when population densities are lower.
Believe it or not, I'm well aware that there is a relationship between mass transit and population density.
However, I wonder if the population density on the two coasts of the USA isn't about the same as in Europe; or whether poverty of transporation options in the major population centres of the USA can be explained fully or mostly by population density differences.
I wager not.
This is a tradeoff that I daresay most Americans are more than willing to make. And the flip side is that cars are so affordable that it gives Americans more flexibility (or freedom) to do things like drive across town to eat, stay out late (most European mass transit severely scales back services as the night wears on), or drive away for the weekend (partly compensating for those shorter vacations - we can drive to a lot of vacation spots over the weekend). I think it is disingenuous to state that car ownership shows a restriction of freedom, when in fact car ownership expands freedom.
I'm tempted to use the I word, but since you're Raskolnikov, I won't.
I never said car ownership restricts freedom. I'm saying that the lack of transport options restricts freedom of choice to driving and driving and more driving.
So you think people don't own cars in Europe, drive across town to eat, stay our late, or drive away for the weekend?
But this is true no matter where you live. If you want a cheap pre-fab house with lots of greenery next door to a strip mall near Paris, you are shit out of luck. If you just hate Gothic architecture and want to live in Oxford, you are also probably in for some disappointment.
I guess it is possible that there is a larger subset of people in the US who dislike dominant aesthetic tastes, but that is an argument I would have to see some evidence for.
Good luck finding that house you described in a European city.
Our high wages and economic standard of living gives us the freedom to do a lot of things and buy a lot of things that just can't be done as cheaply in Europe.
Most of Western Europe has a lower per capita income than the USA, but not terribly lower. And the distribution of income is better, so that workers in manufacturing, for example, get something like twice the wages of comparable American workers.
A couple of comments: first, the unanimous derogation of political correctness is laughable. PC is such a small part of American society that most people have only even heard of it because of Rush Limbaugh. The only "freedom" restricted by political correctness is that of those who choose to participate in the small communities where it is the predominant norm yet still desire to make non-PC comments. Given the disparity in size between the two communities - PC v non-PC - I would even speculate that the lack of PC is more "freedom" denying, since a lot of people who would prefer to live in a PC community can't.
Second, the definition of freedom that Pseudo promulgates is contradictory: "the ability to do what one wants" is only a coherent definition when it is superimposed against a particular "freedom" eliminating force. For example, the ability to do what one wants vis-a-vis the state is coherent, as is the ability to do what one wants vis-a-vis violent communities. Pseudo's definition of freedom assumes the same statecentric worldview that he has been criticizing throughout the discussion. In a world of scarcity, anytime someone "does what they want" it is going to require an unwanted imposition on someone else.
Third, an interesting aspect of this discussion which has been overlooked is the existence of any empirical trends concerning who is more likely to have "freedom" related expenses imposed on them.
How about that archbishop in Chicago, also the victim of child molestation McCarthyism?!
I certainly concede that you know more about what it is like to live in a variety of European countries. My experience comes from living in London for four months, with several side excursions. If this reference base is inadequate, I am sure you will correct, but here are my perceptions...
1) a larger percentage of European families than US families do not own cars.
2) The houses and apartment buildings are generally older. While they are certainly more diverse in architectural style, they have their own inadequacies in size of house, lot size, access to greenery, and general absence of newer architectural styles (a lot of US urban sprawl is driven by the desire of many Americans to own a brand new house). This perception may certainly be due to a small number of reference points.
Sure, I've been there in the evenings. Now it is true that when I was going home from the customer in East New York at 2 am, I called a car service. I seldom ride the subway late at night anyway, because the service is lousy, and the traffic is light. In this case, though, I didn't want to ride through Bed-Stuy in an empty subway car. Would I feel differently in a working class neighborhood near Paris? I don't think so.
Otherwise, I agree with much of what PE has said--this society is in a weird puritanical stage right now, and the subsidization of the suburbs has not, to my mind, been good public policy. But, hey, I like cities, like public transport, and don't like cars.
Have you ever lived in a non-college town in the United States? Anywhere in, say, the Midwest?
DaveM, you're still the ninny I've found you to be, full of orotund gibberish.
Second, the definition of freedom that Pseudo promulgates is contradictory: "the ability to do what one wants" is only a coherent definition when it is superimposed against a particular "freedom" eliminating force. For example, the ability to do what one wants vis-a-vis the state is coherent, as is the ability to do what one wants vis-a-vis violent communities. Pseudo's definition of freedom assumes the same statecentric worldview that he has been criticizing throughout the discussion.
I've no idea what this means.
In a world of scarcity, anytime someone "does what they want" it is going to require an unwanted imposition on someone else.
This is a more interesting statement, but I don't know you mean.
I would say most definitely that a poor person is less free than a richer person.
I feel some Kris Kristofferson coming on.
I misremembered what you wrote. Serves me right for not relying on direct quotes after reading several dozen other posts. But basically, I am making a "revealed preference" argument. While I agree that these preferences are somewhat distorted by factors you mention, I would argue that apparant European preferences are even more distorted by the comparative lack of new land to develop, and the higher cost of land.
"In the USA, bars close at 2AM!"
I am not sure what your point is here. In London, they closed at 11pm. In Paris, I am pretty sure that the Metro drastically scaled back service much earlier than 2 AM, although I rarely stayed out late when I was there.
Exactly.
I've defined "freedom" simply -- the ability to do whatever one wants -- but not simplistically. Every society places restrictions, legal and social, on such a thing. But the definition makes comparison more coherent, I think.
The UK the UK the UK! I've already said, from the beginning, without much prompting, that in some areas there are more restrictions in the UK than in the USA.
I've never set foot in the Midwest, but the US population is concentrated on the coasts.
What are we talking about? Housing or cars? The remarks to which you responded were about cars.
I know this is true. But what would the comparative percentages be? based on PPP comparisons of income, what percentage of European workers would have more economic freedom than American workers? The bottom quintiles? (I have no idea where to find PPP-adjusted EU data broken down into income percentiles).
Both.
The factual stipulation stated that the defendant
photographed his wife and daughter in the nude with the child's
genitals exposed...The photographs were taken by the defendant to Osco drugstore for developing.. Peter Bartholomew of Osco drugstore...brought the film to the...police department.
Photographs Nos. 1 through 5 are of the defendant's wife sitting
next to the fireplace wearing a low-cut black negligee with her
legs exposed up to the hips... In photographs Nos. 6 through 13, the wife and child are posed nude on the living room floor. The sixth photograph depicts the wife in a prone position on top of the child with her face buried in the child's breast. The child's legs are spread apart enveloping her mother's body. Photograph No. 7 is much the same pose.. In the eighth photograph, the child is lying
on her stomach and the wife is kneeling behind her. Photograph No. 9 shows the child standing with her buttocks to the camera..The wife, partly in view, is kneeling in front of the child but here is no physical contact between them. The 10th picture depicts the child facingthe camera kneeling in front of the wife....In the 11th picture,
the child is bent over with her buttocks to the camera and her legs spread apart,providing a view of her genitals. The 12th photograph shows the wife in a crouched position at the bottom of a stairway with only the top of the child's head visible. The last photograph of the wife andchild together depicts both of them sitting on the living room floor.
except for one blurred photograph in which no one is visible. Photograph 14 depicts the child lying on her side with her head propped up by her right hand. The child's left leg is elevated to her shoulder and herlegs are spread apart to their fullest extent, emphasizing the pubic area. The 15th picture shows the child sitting on the floor propped up by her elbows with her left leg bent and raised to the height of her head. The child's genitals are fully exposed, and she is gazing down at her pubic area.
The next photograph, No. 16, features the child with her legs
spread wide in a v-shape. She is lying on the floor with her
buttocks lifted off of the floor, affording a clear view of the
genitals. In the 17th photograph, she is sitting on the floor
leaning back on her elbows with her legs spread wide. Photograph
18 shows a similar pose, but one leg is raised in the air and she
is looking down at her genitals. Again, the genital area is in
full view. The 19th picture shows the child bent over with her
head on the floor. The photograph affords a posterior view of her
genitals. In picture No. 20, the child is lying back on her
shoulders with her hands on her hips raising her buttocks and
legs in the air. Her legs are spread apart, but the view of the
child's genitals is unclear because the photo is blurred.
The remaining six photographs show the little girl either
sitting naked in a chair next to a table or lying on the floor...
This is the only prosecution for child pornography for photos of children by their parents that does not involve some other sexual contact or surepticious photography I found in a search of all state appellate opinions. I would be surprised that a case as you describe would not be appealled.
The lesson: Don't capture your child taking his first step on film if he or she happens to be naked -- or if you do, learn some photo developing skills!
American samizdat is born!
There is also a case of an Albanian immigrant family whose child was taken away from them also for some trumped up sexual moletation charge. I'm trying to find that case too.
Why do you put quotes around the word rinse? Are you saying the mother was instructing her 8-year old daughter to masturbate int he shower?
. But don’t worry, someday you’ll discover a minority you belong to and everything will become clear.
Actually, I belong to several minorities, as you define it. It is also as I defined it to PE a while back in this discussion. Everyone is in the minority at some point or another in America. That, oddly enough, is a good thing. Even if it means that we can't watch Predator unedited on network television, get a drink in a bar at 3 am, or live in a 5 acre lot in downtown New York.
In other countries, the movement between majority and minority doesn't seem to be nearly as fluid.
Re your point to LadyChaos on freelancers--I'm more at risk for punishment by harassment laws than I'll ever be able to use their protection. You are correct that I don't get much protection from any labor or workplace laws.
BTW, all: what is this upset with two week vacations? Back when I was employed, it only started at two weeks and went up from there. And it's certainly not mandatory to live with two weeks, if you don't want to.
Mandatory five or six week vacations is one of the things that makes employment such an expensive proposition in other countries.
JonesatLaw, I'm aware of the case he mentions. Every reference I've heard to it sounds outrageous. Then there's the case, about 7-8 years ago, of the photographer Jock Sturges, whose studio in SF was raided by the FBI on child pornography charges (bogus). There was another such case more recently (not FBI), I think, also involving a well-known artist photographer whose name I can't remember.
As for child abuse/satanic abuse, you are wrong. It was not an isolated trend but occurred all over the US from New Jersey to Oregon for the better part of a decade. There were numerous cases, starting with the McMartin Preschool thing; I believe almost every high-profile conviction has since been overturned. Articles were written about this stuff, Frontline did a documentary that focused on several cases. Moreover, the charge of child sexual abuse got lobbed about with much more frequency, I believe, by people looking to gain custody of children in divorce proceedings. Shit, a whole spurious therapy industry sprung up around the recovered memory bullshit, as did wronged-parents groups in response to it.
I don't know where you live--under a corporal punishment lettuce leaf, perhaps--but if anyone there feels free to spank their kids in public without risking at least the accusation of child abuse, he is freer than most people I know. I do not know anyone--NO ONE--who would risk it. Not here. Not in California. Not in Texas.
Many of the examples given by P.E. seem to be cultural quirks that get under his skin, and I do not know how relevant they are to the question of how much freedom Americans truly enjoy relative to other cultures. However, I will concede that the U.S. and Canada both tend to give far too much weight (politically, culturally, and socially) to certain antiseptic middle-class preferences: strip malls over diverse downtown cores, car congested streets over pedestrian strolls, multiplexes over decent arthouse theatres catering to my penchant for artsy-fartsy fil-ums, etc. And I do think that this tendency tends to diminish the quality of public discourse and the range of choices that people have when it comes to carving out an interesting life for themselves. I also think that, despite its obvious pluses, there is a downside to the North American form of unbridled laissez-faire capitalism that tends to get either ignored or obscured at the public policy level. So to the extent that P.E. is arguing along these latter lines, I am inclined to agree with him --although he has overstated his case.
Finally, I think that the ad hominem attack against DaveM's comments was totally unfair. Although Dave, please do try to limit the vis-a-vis(es)to one per sentence. After three years of law school I have developed an almost pathological aversion to the phrase.
It is true, you're right, that there are class issues involved in some of this stuff. If you decide to live in the margins, the rules that apply to middle- and upper-income people apply less to you. You won't lose your job at JiffyLube if someone finds out you're dating a 16-year-old. But you won't keep your job as a public school teacher. And god help you if you get popped for holding joint, or turn up positive for weed on a random drug test conducted by your employer--even if your employer is Home Depot.
Not quite the innocent capture of baby's first steps, is it?
I'm always suspicious when I read about these parents who 'innocently' are caught by some nasty ole' pornography statutes.
Btw, LadyC
I just finished doing my first oral arguments before the court (mock, of course), and can say that although I was nervous as a cat, I came through the experience a wiser law candidate. Now, I suppose my only first left to go through would be arguing before a real court, which I hope to postpone for a while.
In any case, they want me to consider going for the moot competitions....
Rask: "But this is true no matter where you live. If you want a cheap pre-fab house with lots of greenery next door to a strip mall near Paris, you are shit out of luck. If you just hate Gothic architecture and want to live in Oxford, you are also probably in for some disappointment."
I take your point, but I think you've stretched it thin. Given a choice--that is, proximity to employment and financial means--I think people would prefer the faux small town bult by Disney (Celebration is it? In Florida?) over the monotonous suburbs the US presently has too much of. The alternatives need not be true old Philadelphia-style suburbs (which are not now suburbs, BTW, but used to be, before the city annexed them) or urban centers with deluxe architecture. Freeway-ringed identical cracker boxes (per Silicon Valley exclusive of Palo Alto) and McMansions (everywhere) should not be the dominant alternatives in a country where freedom of "choice" is supposed to matter.
"I guess it is possible that there is a larger subset of people in the US who dislike dominant aesthetic tastes, but that is an argument I would have to see some evidence for."
Hollywood movies. Why does Hollywood come to my town to film? Because this place represents an ideal. Most people simply have no access to it.
Perhaps the discussion would be better moved to International, since it's really about "who's lived where and can say what" about the asthetics of life in other countries.
And your suspiciousness contributes to an atmosphere some of us consider alarmist and puritanical (as does CalGal's, for instance, wrt underage screwing). There was a piece in Salon, "Molested", which illustrated well, IMO, the awfulness of legal intrusions into families when a charge of perversion of some sort is levelled. I'm sure several of you here read it and were entirely unsympathetic to the author.
I'm suspicious that the parents are as innocent as depicted in the media. Often the facts of the situation are very different than the hysterical media convey upon first learning of the incident.
In actuality, it seems damn hard to get someone on pornography charges in this country, we have so many first Amendment constraints on the process.
I'm sorry my attitudes offend you, but frankly, your somewhat more casual attitude toward possible exploitation of children by adults equally ruffles my feathers.
I don't care what adults do with other adults, have no interest in seeing the state intrude into the privacy of adult interactions, as I suspect a good many Americans would agree. However, when it comes to children, I am less forgiving of adult sexual fantasies and idiosyncrasies.
A mother casually takes a photograph of her child, who happens to be nude, just to capture a moment.
Next thing you know, jack-booted American police arrest her.
Because you are probably part of the perverted culture of child-molestation/pornography McCarthyism.
One might almost say you were being PC, PE.
How does this provide one scrap of evidence that the US has this problem more than other countries?
As if Hollywood is particularly good arbiter of what the public finds "ideal" anyway...
Why is this rambling, but interesting, discussion tolerated here? It belongs some place like The Inferno, certainly not in The International Thread
I'm generally lazy when it comes to this sort of thing. However, I have asked that it be moved.
Very funny, Calgal.
I call it the relentless quest to be cosmopolitan cool. A different kind of PCism.
CG: "I call it the relentless quest to be cosmopolitan cool. A different kind of PCism."
Well, what can one say to this? It's a coolness quest, an urbane insensitivity to the plight of molested children, to fear anything done in the name of protecting children from sex? Please.
I'm not arguing about whether other countries are worse off with respect to choice in housing and kinds of communities; I haven't had the opportunity to travel much outside the US and so I have no firsthand experience of the matter. But I have traveled in the US. I am aware of the kinds of communities that can exist, and of the narrowness of options generally. Americans do, in my experience, believe they have more freedom of choice than other people. But they don't really even have enough freedom of choice to choose what Hollywood sells them.
"As if Hollywood is particularly good arbiter of what the public finds "ideal" anyway..."
Manufacturer. But of course, also an excellent arbiter of the ideal.
Don't know if you deliberately switched our two comments, or you were trying to suggest something else. In any case, I'm not of the group that tends minimize the possibility of exploitation of children for adult convenience and pleasures. Too many horror stories from past decades for me to assume our recent concern about protecting children from their own family's exploitation (and I don't mean just sexually)is overkill.
I think you have to look hard and long to find many of these incidents of parents wrongly thrown into jail for innocently documenting their children. In fact, I think they become national attention grabbers, and the stuff of rabble rousing, precisely because they happen rarely.
Personally, I think there's more danger in people being caught by statutory rape laws than being mistakenly snared in a pornography statute. However, we seem to be at odds about the threat to personal freedom child protection laws represent to American adults.
I spent half my day to day judging 1L moot court rounds.
CalGal,
Yes, it's becoming almost dangerous these days to say that you disapprove of pedophiles in certain circles.
That's the same sort of demagoguery that reactionaries use when one advocates ending the drug war. They say, "Oh, I guess you support drug dealers," or, "You are advocating drug use."
The problem is not to deny that pedophiles exist, but to recognize that we have a legal tradition in this country which presumes a man's innocence when accused of a crime. The state has no right to label someone a criminal until the state has subjected that person to the due process of a fair trial and has proven that person's guilt beyond a reasonable doubt.
The hysteria over child molestation, however, has reached such a fever pitch in this country that anyone accused is tried and convicted in the media before getting a chance for a fair trial. What's more, some of the ninnies advocating "found memories" have raised some troubling issues of proof in molestation cases.
It has become so fashionable among college-age women in America to have been a victim of sexual deviancy that one tends to doubt the veracity of their accusations, especially the latent ones. This does a disservice to real victims of sexual predation.
Inadvertent.
Look, MsIT, what can I say? I can dig up news reports, mention circumstances I've heard about personally. It won't matter what I cite. You will claim the number of injustices is too small to matter relative to the overall good gained from child abuse hysteria because, after all, child abuse is horrible. But this, as you have already implied, will be your bias speaking, just as it is the bias of white conservatives that figures a few police brutalities in NY is a reasonable price to pay for safer streets.
The fallacy is the assumption that overreactions are necessary or unavoidable, and the shame is that neither you nor my hypothetical conservative NYer considers it important that people who are not criminals feel as though they must watch their backs lest their motives and actions be confused with criminality by the watchful guardians of civic decency.
You know, orthodox Jews have a saying: "build a fence to the Torah." By this reasoning, every law commanded by God must not only be obeyed, it must not come close to being disobeyed: you are to stay away, fenced off as it were, from even the edge of illegality. Thus the origin of separate dishwashers for cleaning of dishes used to consume meat and milk products; separate refrigerators; separate cutlery; separate kitchens in kosher establishments; and even waiting a certain number of hours between consuming one item and the other. (Chicken, even, counts as meat.) All this from the prohibition, "thou shalt not seethe a kid in its mother's milk." It gets expensive, all this carefulness. It's intrusive on life.
Mind you: anyone who messed with my children would not survive the period between my locating him and the date of his arraignment. But if, god forbid, something were to happen to one of my kids, the last thing I would want would be for the courts and the shrinks and the puritanical do-gooders to descend, to instill notions of shame and responsibility and woundedness my kids are not being raised to harbor. I'm sure at least half the danger of child abuse is a sex-fearing society's reaction to it, and the burden that puts on the victims of it. More horror of child abuse, underage sex, etc., does not necessarily help children.
I'm sorry, but this smacks of the sort of "Lock them all up and let God sort them out" attitude which I find rather chilling in our society.
Heh heh. Best line of this exchange, so far, by far.
I fundamentally disagree with your premise that false accusations of child abuse and exploitation run rampent in this country. Rather I see this as a consequence of the new consciousness parents now have that abuse is one of the dangers they must protect their children from (assuming the danger comes from without). So it's become increasingly important as a responsibility of the state to more dilligently pursue such complaints. In addition, the media is more attentive to it precisely because it's become a major part of this society's consciousness.
Just because it was patently ignored for most of our history doesn't make this country more hysterical about it, the problem is simply given more visibility now. To me, it indicates we've finally accepted that children are harmed by adults in significant ways -sexually, emotionally, physically - and that we all pay the price for this.
If you want to argue adults are less free because we've recognized new rights in children, then that would be the cause whenever we define a new right in society. There is always a balance of competing interests and rights that must be found in law and society. Recognizing someone who was previously disenfranchised from our legal consciousness automatically infringes on someone else's right to have their interests soley represented.
I'm sorry, but I see this as a natural evolution in childrens rights, that they would begin to erode into the realm of freedoms previously granted exclusively to adults. In fact, I think we have a long way to go before this process is over, simply because we still recognize damn few independent childrens rights in this country.
And you would be arrested, tried for 2nd degree murder, most probably convicted, with the possibility of it being reduced to manslaughter.
Sentence: 2-20 years for a manslaughter conviction, 5-99 years for murder 2.
So, your freedom would be curtailed in any case, and arguably in a more significant manner.
I, along with everyone concious, am quite aware of the standard line of argument you've put forth.
There are so many unquestioned presumptions in your last two posts (the second has me resting my forehead on the heel of my hand), and so much apparent reluctance to consider carefully my remarks against those presumptions (or LadyChaos' remarks, or PE's remarks), that I don't see the point of continuing this exchange.
Neither of us will gain anything useful from it.
Yes, it's standard I suppose. However, you underestimate my consideration of your concerns. I simply think they are overstated. You also brazenly label anyone who disagrees with you as puritanical and McCarthyism. I vehemently disagree with both you and PE on this. Perhaps if you both saw the unworthiness of these particular charges you'd be more open to serious dialogue on this issue.
You are correct, this converstation should not be continued.
Your last post clearly demonstrates your selective concerns about who's freedoms are being curtailed, and why. Sexual harrassment laws result in exactly the same sorts of overinclusion and rampant fear among men as you suggest occurs in the area of child protection laws.
On a purely factual level, of course, the photos Jonesey described at length earlier are obviously pornographic, and intended to be.
There's no way one just "accidentally" or "serediptidously" catches one's three-year-old daughter in the "natural moment" of bending over and spreading out her ass & pooter.
Shit, not even Playboy and Penthose will touch that particular pose. That's a Hustler pose, a Swank pose. Even Bob Guccione won't do the old "touch your toes & spread 'em" shot.
I don't want to come across as an apologist for Bill Gates, but MS is clearly going to get screwed on this one. If you look at the case carefully, it becomes apparent that the case against MS is not nearly as strong as the DOJ and Judge Jackson would have the public believe. Two key points are of note: First, the case against MS has been argued in terms of network externalities with all of the implied notions of lock-in and market failure that is present in certain strains of that literature. Yet, it is by no means certain that the presence of network effects inexorably leads to market failure. The court is too readily conceding an economic theory that is far from cut and dry in its ramifications for antitrust law. Second, antitrust law is meant to protect the consumer, not frustrated competitors -- and especially not frustrated competitors the size of IBM,Apple, Sun, Netscape, etc. Yet, most of the supposedly anti-competitive harms adduced by the court are harms inflicted against these big corporations; which have all displayed a singular lack of resolve and business acumen in their efforts to compete with MS. The only actual consumer harms demonstrated in the case are astonishingly trivial: minor inconveniences when it comes to launching Netscape, and a tiny amount of wasted hard drive space. In the end, the governments case devolves into a rather crude BIG (i.e. MS) is BAD argument.
"Second, antitrust law is meant to protect the consumer, not frustrated competitors"
Not quite true. Antitrust law seeks ULTIMATELY to protect the consumer, but it does so (& always has done so) by protecting COMPETITION.
"I call it the relentless quest to be cosmopolitan cool. A different kind of PCism."
I had my own term for it, which I now forget, but both Cal's and MsIT's are better.
Well I should qualify. Antitrust law is not meant to punish aggressive competition. It is meant to hinder anti-competitive behaviour. But how do you identify anti-competitive behaviour? Well you look for activity that does not involve competition on the merits, but rather involves an effort to leverage market power in a manner that harms consumers -- which usually involves some sort of predatory behaviour against weaker competitors. The ultimate gauge is the capacity to exercise the powers of a monopolist, which is measured in terms of consumer harm.
Tabouli:
Yes, and Microsoft is guilty of the lot of it. Leveraging, tying. It's textbook anti-competitive behavior. Further, they ARE a monopoly.
Microsoft deserves whatever it gets. If they get broken up--hallelujah. I'm not particularly impressed with Windows, and I'd *love* a real choice in my IBM-clone's OS.
Cosmopolitan cool? Yes, that surely describes Americans who affect knowledge of abroad without having it.
I thought it was being used to describe something else. But if it makes you happy to define it this way, enjoy.
Certainly MS's behaviour has been anti-competitive, but it is not so anti-competitive as to warrant the most heavy-handed of remedies.
Tying is not textbook anti-competitive behaviour any more. Since the seventies there has been much debate as to whether or not tying is per se anti-competitive. Although I do grant that in this case MS's behaviour towards Netscape was classically predatory and deserving of an appropriate remedy; just not breaking up the company or releasing Windows source code.
As for the general argument that the dominance of Windows has eliminated consumer choice, I don't think that all of the blame falls on Microsoft. Apple has made serious strategic blunders, IBM has not shown much interest in developing an OS comparable to Windows (because they are making so much money elsewhere), and options like LINUX and the like have not captured consumer allegiance for reasons unrelated to the dominance of Windows.
"but it is not so anti-competitive as to warrant the most heavy-handed of remedies."
Cite? This seems to be just "your opinion." I have no evidence handy to contradict it, but I will say that a "less heavy handed" rememedy -- a huge fine -- harms the shareholders and does not address the real problem: That Gates has a monopoly and is not shy about engaging in anti-competitive behivior.
Releasing the source code seems a justified rememedy. Bell used to own all the phone lines; cable companies used to own all the cable lines. But when a company engages in anti-competitive behavior, the courts have responded by forcing the monopolists to turn over the instruments of their monopoly.
Note that Bell still gets license fees for its phone lines. But they are required to license their use to whomever wishes to compete.
Similar to forcing MS to release its source code. Most likely, MS will receive a fair license fee from whomever uses the source code; but they will be required to license its use.
'Cite? This seems to be just "your opinion."'
Economists Nicholas Economides and Paul Krugman side with my interpretation. And I bet Judge Posner also sides with my view. I've actually read the case material and much of the commentary, so I'm not just workking on vague intuitions here -- although I'm not communicating my opinions all that well.
You say the courts should respond by forcing the monopolist to turn over the instruments of its monopoly, and I would agree. However, I contend that much of MS's current monopoly power has been the result of lacklustre competition from the likes of IBM and Apple. There is I suppose an element of public-choice theory in my argument here.
Tabouli:
Well, as I'm sure you know, there are economists who disagree with the anti-trust laws ALTOGETHER, and argue there is no such thing as a true monopoly (substitution is ALWAYS a choice).
There are economists who argue that monopolists should be allowed to engage in the very worst kinds of predatory behavior-- such predatory monopolists, these economists theorize, will destroy their own monopoly and force competitors to the fore.
Your last post clearly demonstrates your selective concerns about who's freedoms are being curtailed, and why. Sexual harrassment laws result in exactly the same sorts of overinclusion and rampant fear among men as you suggest occurs in the area of child protection laws.
I was sputtering indignantly over that very thing. My lord, there wasn't even a decent pause in the conversation when the morph occurred.
Essentially, the DOJ is saying that the market is structured in such a way that no new competitors could possibly enter the industry in a manner that could countervail MS's dominance. Such entry is possible. It just has not occurred yet, for various reasons. One reason is that MS simply learned how to effectively compete before other companies, and these companies are only now catching up with MS in terms of business acuity. Another reason is that the software industry is so profitable that many companies are going for the easy money, and foregoing competition with the established players in any given category. In time, when the market settles down, companies will likely attempt to appropriate some of MS's monopoly profits for themselves.
I suppose her selective outrage flows mainly from the fact that her "freedoms" cannot be curtailed under sexual harassment laws, but could potentially be curtailed under pedophilia laws.
"Tough shit" is what we say when we take away "freedoms" from somebody else. "Bloody Nazi McCarthyite fascists!" is what we cry when the same laws are applied to we ourselves.
"Another reason is that the software industry is so profitable that many companies are going for the easy money, and foregoing competition with the established players in any given category."
Which means there's a monopoly, and will be for some time.
No software company is going to bother writing applications for anything BUT Windows and Mac. You're simply not going to find any but the most top-selling applications written for anything but Windows and Mac. Ergo, no one will buy an OS except for Windows and Mac.
OS/2 Warp? Yeah. Right. Remember all the spreadsheet programs and games and word processing programs written for OS/2 Warp? Nope. Neither do I.
Nor do I notice many applications written for Linux.
"In time, when the market settles down, companies will likely attempt to appropriate some of MS's monopoly profits for themselves."
In time, ALL monopolies will vanish, dude. "It time" is not good enough.
The point is that competitive entry is possible, so a structural remedy should not be the immediate choice.
LINUX is unable to compete with Microsoft because the open-source movement is a peculiar means of developing a viable product. LINUX still hasn't settled on a standard GUI, so developers aren't going to jump on that bandwagon any time soon -- for reasons unrelated to MS's dominance.
IBM is loaded. If they wanted to convince developers to create a demand generating array of products for this platform they could. However, IBM makes so much money elsewhere that they are not fully committed to their product. Is this lack of enthusiasm a result of anti-competitive actions by Microsoft, no. Is it a result of structural problems endemic to the industry no. So, why go for a structural remedy, when other less drastic measures are available.
"The point is that competitive entry is possible..."
No, it's not. Or rather, competive entry is ALWAYS possible. But the monopoly imposes such a huge entry cost that no one bothers trying.
Oh, it was, but then, what the hell, who can argue with the great international standard bearer PE?
You could have done a [sic] and corrected for me, but no.....
that's heels, of course.
I give up. I'm off to play in the sun.
"But the monopoly imposes such a huge entry cost that no one bothers trying."
IBM spent "tens of millions of dollars" (in Judge Jackson's words) in developing OS/2. Within a year they achieved a 10% market share (again according to Judge Jackson). This doesn't sound to me like the sort of "onerous front end investment that might deter competition from all but the hardiest and most financially secure investors" normally contemplated by the antitrust laws. (See Syufy Enterprises).
Companies don't bother trying, because there is presently easir money to be had elsewhere.
Also note that software development is a peculiar industry. Marginal costs are negligible and network effects create econoimies of scale on the demand side. Thus a company can profitaly enter at a relatively small scale. This is different from the classic antitrust scenario, where the "minimum efficient scale" is extremely high,and economies of scale only arise on the supply side so that an entrant must first spend all sorts of money just to be in a position to introduce their product at all.
Also, I applaud MsIT's decision to allow a free-wheeling exchange of what has only marginal relevance to the thread topic. Threads (and Hosts) are not created to hamper debate, but to facilitate them; they are not created so everyone can practice posting strictly relevant posts, but to channel certain posts into areas where they might have a chance to be seen, and, thus, inspire response. Who cares where a good debate begins so long as we continue to have them? Too many hosts seem as if they are afraid a good discussion might start within their area of responsibility so quick are they to quash anything that might be construed as not entirely relevant to it. One of the best examples of a good discussion taking place within an area not relevant to it was the debate on the U.S. decision to drop the atomic bombs on Japan, which took place in the thread called News of the Day.
For a great piece on Microsoft's power and what to do about it, read Charles Ferguson's High Stakes, No Prisoners: A Winner's Tale of Greed and Glory in the Internet Wars
Ferguson founded Vermeer Technologies, which created Frontpage, a software product for creating and managing websites. He sold this product to Microsoft after flirting with a possible sale to Netscape for a short time.
The entire book is great reading and I highly recommend it, but the section of relevance to your discussion with Ace is a chapter called "The Microsoft Question". Ferguson is particularly good on this question for two reasons that other commentators can't match: first, he has the practical and theoretical arguments of this debate down pat (I'll explain this later); second, he is fair-minded, giving Microsoft more than its due for what it has done in the Software industry and vividly making clear that any legislation shouldn't damage those contributions.
Ferguson holds a B.A. in mathematics from Berkeley and a Ph.D. in political science from MIT. At MIT, he researched American competitiveness vis-a-vis (sorry!) Japan. He also has experience with the DOJ (as a consultant, I believe) and has researched the history of anti-trust legislation (for why, I can't remember, for his erudition on the subject is concisely demonstrated but obvious).
But Ferguson's largest strength is the experience and knowledge he has of the software industry and the reasonble manner he lays forth, not only the problem of Microsoft, but a policy proposal to solve it as well. The entire book was an education for me and I highly recommend it, but if you don't have the time, just read the chapter called "The Microsoft Question" when you have a free hour to spend in a bookstore.
Vis-a-Vis Pincher,
Thanks for the recommendation. I will read the piece and look for the book. I'll also look for your thoughts on the case.
Don't be absurd. The issue is not the curtailment of child molesters' freedom.
You think I shouldn't be concerned that innocent people's freedom from unwarranted accusations of child sexual molestation is curtailed in the name of protecting children, who nevertheless are not more protected by a more alarmist society? Please show me one iota of unbiased evidence that increased attention--legal, societal, press attention--to child abuse has decreased the amount of child abuse children suffer.
The same thing cannot be said about laws concerning sexual harassment in the workplace. The threat of lawsuits makes companies circumspect about the issue--excessively so (as I've argued myself, in the distant past). But the upshot is that women really are afforded a measure of protection as a result of the deterrent effect of sex harassment legislation. By comparison, people who molest their kids tend to do it away from corporate (and therefore controlled) settings. They are not deterred by the illegality of their behavior. And the legal remedy for it can surely, from the child's perspective, be as bad as the crime itself, perhaps worse if the crime merely involves something along the lines of taking suggestive photos.
But please, line up with Ace of Annelids now and advance an ad hominem about how I could not possibly hold such outrageous views were I not hoping to make the world safe for perversions I must be guilty of.
I know this is true. But what would the comparative percentages be?
based on PPP comparisons of income, what percentage of European
workers would have more economic freedom than American
workers? The bottom quintiles? (I have no idea where to find
PPP-adjusted EU data broken down into income percentiles).
There is an article by Gottschalk and Schmeeding in the Handbook of Income Distribution with data on PPP adjusted post-tax cash income of households in many Western European countries and the United States for 1991 or thereabouts. I think this is available at the Luxemborg Study of Income Distribution site (look it up on Yahoo). The basic upshot was that median US incomes were about 20% higher than Europe but that at the bottom quartile or below, European incomes were higher. Except in France which was below the US at all income levels.
Everyone gets in a lather when some creep snatches a child and sexually or physically assaults a child. Its the stuff of sensational headlines and live news updates. However, children are far more likely to be killed, assaulted, or sexually assaulted by family members than some stranger pouncing on them out of the shadows. However, the issues involved in the majority of cases are far too uncomfortable for us to deal with. Do false reports sometimes spin out of control?-sure. Whatever lip service we pay to the idea that "children are our future and most valuable resource"
the cops that investigate child abuse, the caseworkers for HHS, the therapists and the prosecutors assigned to these cases are not the first line folk. We save them for property and drug crimes. We don't have the resources, the funds, the expertise or the desire to do our best in cases regarding kids. So, I am not surprised that we bring cases that we shouldn't nor am I surprised that we don't bring cases when we should.
I agree with you...it can often be a real mess. And to make it even worse, there's divorce...bad enough when the parents are just fighting over money, but when it's custody, too often one will accuse the of having sexually abused one of the kids. And, it may or may not be true. Too often the family court worker sides with whichever parent he/she likes.
Damn interesting link.
Idiots. The day those pigs are successful in desecrating our Constitution is the day that the flag will no longer stand for anything worth defending.
I agree with you re the flag issue.
On a differnet topic, my father informed me that the SC was about to hear a case deciding whether the Portsmouth Naval Shipyard was in NH or Maine. I just looked at the SC Docket for April, and didn't see the case. Do you know how I can find the case?
What made you leave in the first place?
I don't have an answer to your question regarding the Portsmouth Naval Shipyard. I didn't find any decision in the lower courts, so it could be an issue over which the Supreme Court exercises original jurisdiction.
MsIT,
My partner and I won the advanced Moot Court competition. I won the Best Oralist award.
I'll know on Sunday whether my law review paper will be published.
A related worry is copyright. We of the Mote blithely paste in whole screeds of published material. I know that in Australia publishers are very alert for such breaches. Do have any information about this risk?
In particular, why would an American academic be compelled to attend a U.K. proceedings for remarks she made on a British academic?
The operative issue here would be jurisdiction over the defendant. I'm not sure how British law differs from ours on that question; however, it seems likely that they share certain principles with us. As I understand American libel law, if the libellous remarks caused a foreseeable injury to the plaintiff in the jurisdiction where the defendant knows the plaintiff resides, then the plaintiff could get jurisdiction over the defendant in a "home court," so to speak.
The plaintiff's case for jurisdiction over the defendant would be strengthened if the publication that dispersed the remark was knowingly circulated in the forum where the plaintiff resides. If it was an Internet publication, the question would obviously be more tricky.
London--A British Internet service provider has agreed to pay a substantial sum to a physicist who says he was libeled in messages posted on electronic bulletin boards carried by the company, in a move that lawyers fear will severely curtaqil people's ability to speak freely in cyberspace.
The company Demon Internet said on Thur that it would pay about $25,000 in damages to the physicist, Laurence Godfrey, as well as Mr. Godfrey's court costs, which are likely to come to several hundred thousand dollars. The case stems from a message posted in jan 1997 that was "squalid obscene and defamatory," Mr. Godfrey said, and another message a year later that Mr. Godfrey also described as defamatory.
Demon's decision to settle the case, in the face of moounting evidence that it would not have won in court, is significant, lawyers said, because it establishes that British Internet service providers--companies that provide access to the Internet--are liable for the messages posted on the forums they carry, regardless of where the messages originate. And slthough it does not require Internet service providers here to screen messages in advance, it does mean that they will be obligated to respond quickly to complaints about messages, and remove those that might be libelous.
"This is going to have a chilling effect on free speech," said Adam Taylor, head of the e-commerce and technology group at Withers, a law firm in London. "As a result of this settlement, Internet service providers are going to be very nervous. When anybody makes the slightest complaint, they're going to be pulling material down. If they don't, they leave themselves liable to the kind of defamatory actions taken in this case."
more
"The short answer is that this will have not effect because the law in the U.S. is very different in that the Internet providers have as close to absolute immunity as you can get," said Steven Lieberman, a partner specializing in First Amendement law at the D.C. firm of rothwell Figg.. "But it gets more complicated when you realize that messages posted by U.S. based Internet service providers can be read outside of the U.S., that a reader in the U.K. can have access to something you post in the U.S."
But Mark Stephens, a media lawyer at the London firm of Finers Stephens Innocent, said that in a medium with no national borders, the settlement had important golobal implicaTIONS.
"This brings the real prospect of Internet service providers, wherever they're located in the world, and whether or not they're protected by the free speech guarantees of the Bill Of Rights in America, being dealt with harshly, robustly and expensively in the British courts," Mr. Stephens said.
Mr Stephens said the the service providers would be particularly vulnerable to threats from the rich and litigious.
"It's open season," he said. " This exposes Internet companies to the ability on the part of the rich and powerful to censor them. If your're rich and powerful, you could sue the Internet comapny to take something off the Internet edition of an American newspaper, because you know they're going to censor the newspaper even if the newspaper doesn't censor itself."
more
Posted in the US on the soc.culter.thai news group, which is devoted to discussions about Thailand, the message was said to have made rude and offensive allusions to Mr. Godfrey's personal life and purported to have come from Mr. Godfrey himself, although it was actually a forgery.
Mr. Godfrey was extremely upset about the message and in series of faxes asked Demon to remove ti from the news group. When the company failed to do so, he sued. He sued again the following July, when another posting, on the uk.legal news group, made further rude remarks about him. He did not sue the people who posted the messages.
Mr. Godfrey's solicitor, Nick Braithwaite, did not return calls and the exact substance of the remarks made against Mr. Godfrey remained unclear. He is no stranger to libel actions. In 1994 a fellow physicist, Philip Hallam-Baker agreed to pay Mr. Godfrey an unspecified amount in damages after Mr. Godfrey sued for libel in connection with a number of Internet postings raising doubts about his professional competence.
more
British libel law is much more weighted toward plaintiffs than in America, and Demon had almost no choice but to settle this case. In an interim ruling last year, a judge in Britain's High Court ruled that the company could not rely on a defense claiming it was merely an innocent disseminator of the defamatory messages, as it had sought to do. That defense, the judge said, "is in law hopeless," and Demon should be treated as the publisher of the material.
Demon decided not to appeal and ultimately decided it had little chance of prevailing in court.
Mr. Godfrey said he was pleased with the outcome. "I'm quit sure there is no right to libel other people on the Internet, to concoct fabricated allegations and try to destroy people's reputations." he said outside court yesterday.
A spokeswoman for Demon, which is now owned by Thus, a telecom and internet company in Glasgow, said it was striving to comply with the law requiring it to respond to complaints by removing offending messages. But she said it was impossible for the company to monitor all the postings it carries, which total more than a million a day, enought to fill all the books in a bookshelf a mile long.
"Thus remains convinced that the law hasn't kept pace with the development of the Internet," the spokeswoman said. While the company now routinely removes material that is "unsuitable or defamatory," she said, "it is contrary to common sense to make Internet service providers responsible for the millinos of items carried on the Internet."
I read the exchange you referenced in TT. My initial feeling is that the person who was so upset and referenced the Irving v Lipstadt case is completely off base. First, the US libel laws are very different than British. Second, that the comments took place over the internet provides additional protection, not only for the poster, but also for the ISP.
The US has granted internet providers immunity for third party slander or libel, thus, they are not responsible for any comments made by posters. In addition, anonymity of posters makes tracing who said the comments almost impossible, so if the person thinks they can sue any American who didn't post under their real name then they are dreaming. Won't be possible. Nor is the ISP required to provide someone sueing an individual the real name of the party in question, under the privacy act.
The relevant communications statute regulating the internet in the US is discussed in ZERAN v. AMERICA ONLINE, INCORPORATED., 129 F.3d 327, where the US Court of Appeals for the 4th district said the following:
Communications Decency Act (CDA) immunized commercial interactive computer service provider from liability for defamatory information posted by third parties. Telecommunications Act of 1996, § 509(c)(1), 47 U.S.C.A. § 230(c)(1).
The Irving slander case is based on a book publication, an area that has a more traditional body of law behind it. I would suspect, however, that even in that situation, the US would be a very different environment than the British courts, where the bias is clearly for the plaintiffs. US libel laws, particularly when it comes to public figures (published authors come under this rubric, I think), are harder to bring to bear, since the standards applied to people in the public eye are very different than to private citizens.
So, I'd tell this guy he's blowing hot air, IMHO.
Congratulations!
Again, the US has very limited liability for internet providers. As for the impact on internet communications, I'd think it's much more likely that ISP's stop signalling to Britain rather than that British libel laws would have any real impact on global internet communications.
Possibly American ISPs would, instead, give posters an option of eliminating access to British poster boards, and would only allow British posters reader rights, no posting, in an effort to get around any liability in British courts. In other words, I see this only as harmful to the expansion of the British internet, and its citizens's access to global communications, not the reverse.
Impressive series of informative posts on my question, especially these last couple by MsIT. Thank you. 
Congrats on the Moot Court results!
What the hell is Ronald Coase talking about? Why does this man's idiotic 'Theorem' haunt my every move in law school?
Spence, where are you? I want to talk about Coases world of zero transaction costs and the supposed lack of need for any laws under those circumstances.
Its funny, ask any lawyer about Coase and they will say: yeah, he's right, there is no such thing as transaction costs. Then, well, you get your lawyer's bill, replete with transaction costs calculated down to the minute. Curious ain't it.
If any lawyer says to you "there are no transaction costs", that's an immediate signal they don't know what the hell they're talking about. They don't even know Coase's Theorem, which only assumes a world of zero transaction costs in order to make his main point about efficient solutions that emerge from private interactions.
Personally, my main beef with his idea has more to do with the fact that I think it's nonsense even if we assume his conditions. I think it contradicts some of the stuff Spence deals with in game theory, for one. For another, he never tells us what would happen in the face of stubborn owners (or controllers of the resource).
Yet another problem I can't get around is the issue of externalities. If you can't price the cost, how can you negotiate even when transaction costs are zero? Then there is the significant problem of multiple agents involved. The more people who have to participate in the negotiations, the greater the likelihood of free riders. I still don't understand his logic in getting around that one.
I think Spence should comment.
I was surprised that there was no place for a signature. Most government forms have a signature line, with words to the effect that a signature means that the information is truthful.
Does this mean one is not required to answer the census truthfully? That seems unlikely.
I would have assumed that a law could compel truthful answers without requiring a signature line. If so, what is the purpose of the signature line? Is it psychological, because people may be less willing to lie if they sign their name, or is it merely to establish who filled out the form?
To put it a different way, I assume that people are charged with fraudulently filling out forms on occasion. Is the signature merely used to prove who filled it out, while the requirement that the form be truthful is in the written law? If the prosecutor asks the defendant to read the line requiring that the information be accurate, does this carry any legal weight in court, separate from any law?
When the Supreme Court upheld an ordinance last week banning nude dancing in Erie PA, the American public was treated to the spectacle of hearing Justice Sandra Day O'Connor somberly discuss the protective qualities of pasites and G-strings, which the law requires the dancers to wear.
The court has tackled such matters before. In 1991 the justices upheld an Indiana public indecency law that also banned nude dancing. And four years ago, in a case invvolving a similar statute in St. John's county, FL, the court refused to overturn lower court decisions that refected the argument that the ban violated erotic dancers' freedom of artistic expression.
That case also provided an unusual insight into the legal mind at work. It turns out the St. John's law, which requires that about one-third of a dancer's buttocks be covered, went to great lengths--328 words, to be exace--to determine that unlikely battleground for First Amendment rights:
"The area at the rear of the human body (sometimes referred to as the glutaeus maximus) which lies between two imaginary lines running parallel to the ground when a person is standing, the first or top of such line being one-half inch below the top of the vertical cleavage of the nates (i.e., the prominence formed by the muscles running from the back of the hip to the back of the leg)and the second or bottom line being one-half inch above the lowest point of the curvature of the fleshy protuberance (sometimes referred to the gluteal fold), and between two imaginary lines, one on each side of the body (the 'outside lines'), which outside lines are perpendicular to the ground and to the horizontal lines described above and which perpendicular outside lines pass through the outermost point(s) at which each nate meets the outer side of each leg.
More!
Sunday NYT
Anyone from St. John's Florida perchance?
It is against the law to lie on your census forms. However, I don't know if the offense carries a criminal or civil penalty (ie, jail time or fine, or both). I do know that the Dept of the Census waits to display their muscle until they send out their census workers, who track down households that have not responded to the initial mailing.
As for the signature, well, the Gov't must assume that they have your social security number, your tax money, your life in their files, so if they want to question the truthfulness of your responses, they can do it on a random basis (which is probably more effective anyway).
Wonkers
The Supremes have upheld any number of state and local ordinances that enforce public decency standards of the particular communities, this is nothing new. I think their validation of sexual preference laws, sexual standards, contraceptive laws, and other "bedroom" behaviors, at the local or state level is more disturbing than upholding laws regulating public nudity. At least the latter have the dubious honor of preserving public decency standards.
I forgot to say that when people actually sign a form as to its truthfulness, that does carry added weight in the law. It means that you can't use the "I didn't know" excuse as a defense. However, lack of knowledge of a law is not a defense in courts anyway.
The signature adds extra umpf to your culpability, though.
Thanks for the answer. I've wondered about the redundancy given the "ignorance is no excuse" principle, but I suppose there is some leeway granted whne people cake a case that they didn't know; this helps prevent the need to cut people slack for that possibility.
Does the law distinguish between a lie and an omission? For example, the difference between answering a question incorrectly, and leaving it blank?
Obviously the 2nd amendment's right to bare arms, etc., doesn't "cover" everything... : )
Funny.
Dusty
Omissions only matter when you're under an affirmative duty to answer.
They would also matter if the statement you read before signing included any omissions. ie, "I hearby swear that the foregoing are accurate and truthful to the best of my knowledge and do not contain any omissions that would otherwise call into question their truthfulness." Or words to that effect....
My Law Review Comment has been selected for publication!
The "stick-it-to-da-man" express is rolling out of the station. Hallelujah!
You're a frickin' freight train!
Congrats on both the Moot court and the publication of your Law Review Note. Soon you'll be qualified to work for the highest-paying sweatshops in the world.
Thanks, Dan... I think.
From the Arkansas Supreme Court decision: "On May 10, four days after the bodies were found, the police had not solved the cases. When Detective Bryn Ridge questioned Echols, he asked him how he thought the three victims died. Ridge's description of Echols's answer is abstracted as follows: He stated that the boys probably died of mutilation, some guy had cut the bodies up, heard that they were in the water, they may have drowned. He said at least one was cut up more than the others. Purpose of the killing may have been to scare someone. He believed that it was only one person for fear of squealing by another involved. At the time Echols made the statement, there was no public knowledge that one of the children
had been mutilated more severely than the others. On June 3, or almost one month after the murders, Detective Mike Allen asked Jessie Lloyd Misskelley, Jr., about the murders. Misskelley was not a suspect at the time, but Echols was, and it was thought that Misskelley might give some valuable information about Echols. Detective Allen had been told all three engaged incult-like
activities. Misskelley made two statements to the detective that implicated Echols and Baldwin, as well as himself. The statements can be found in Misskelley v. State, 323 Ark. 449, 459-61, 915 S.W.2d 702, 707-08 (1996)."
"Moreover, two witnesses testified that they overheard Echols state that he killed the three boys, and this was direct evidence.
Although not material to this point, other evidence established that Domini Teer might be confused with Baldwin as both had long hair and were of slight build.
Twelve-year-old Christy VanVickle testified that she heard Echols say he "killed the three boys." Fifteen-year-old Jackie Medford testified that she heard Echols say, "I killed the three little boys and before I turn myself in, I'm going to kill two more, and I already have one of them picked out."
The testimony of these two independent witnesses was direct evidence of the statement by Echols. These witnesses were cross-examined by Echols's counsel, and it was the jury's province to weigh their credibility.
Dr. Frank Peretti, a State Medical Examiner, testified that there were serrated wound patterns on the three victims. On November 17, 1993, a diver found a knife in a lake behind Baldwin's parents' residence. The large knife had a serrated edge and had the words "Special Forces Survival Roman Numeral Two" on the blade. Dr. Peretti testified that many of the wounds on the victims were consistent with, and could have been caused by, that knife.
Deanna Holcomb testified that she had seen Echols carrying a similar
knife, except that the one she saw had a compass on the end. James Parker, owner of Parker's Knife Collector Service in Chattanooga, Tennessee, testified that a company distributed this type of knife from 1985-87. A 1987 catalog from the company was shown to the jury, and it had a picture of a knife like the knife found behind Baldwin's residence. The knife in the catalogue had a compass on the end, and it had the words "Special Forces Survival Roman Numeral Two" on the blade. The jury could have made a determination whether the compass had been unscrewed, and, in assessing the probativeness of the location of the knife introduced at trial, hear