Re: Adultery in Michigan could mean life in prison
Jonathan Biggar
> The Michigan Court of Appeals just held in a published, binding opinion
> that consensual sex which is linked to the commission of any other
> felony constitutes a form of aggravated rape. Under this holding, an
> otherwise law-abiding woman who commits adultery could spend the rest
> of her life behind the walls of a prison.
That's a ridiculous reading of the ruling.
In the actual case, the defendant was found to have deliberately gotten
a woman addicted to oxycodone, and then demanded sex in order to
continue to supply her habit. Describing that as "consensual sex" is silly.
--
Jonathan Biggar
j...@floorboard.com
j...@biggar.org
Mike Jacobs
> The Michigan Court of Appeals just held in a published, binding opinion
> that consensual sex which is linked to the commission of any other
> felony constitutes a form of aggravated rape. Under this holding, an
> otherwise law-abiding woman who commits adultery could spend the rest
> of her life behind the walls of a prison.
I don't doubt that you accurately report the concerns of your fellow MI
attorneys, but (having read the opinion you cite) there doesn't seem to
me to be much risk of it being applied in a divorce case against "an
otherwise law-abiding woman". The charge in the cited case was
against the man who had provided drugs to a barmaid in exchange for
consensual sex over an extended period. He, the defendant, was the
aggressor, not the victim. It doesn't say they charged the woman with
a sex offense. But if they did, she was not "innocent" if she was
accepting drugs in payment for sex. That would amount to both (a)
illegal possession of a CDS and (b) prostitution, in most cases.
I'm at a loss to see how the new statute, or the cited case, could be
applied to criminalize consensual sex between an adulterous spouse and
his or her paramour where no other form of criminal activity was
involved, even if adultery is still a crime in MI (is it?), or even if
the illicit couple toked a joint or two in bed afterwards. IMO the
whole point of the cited case was that this defendant was basically a
pusher who got his victim hooked on Oxycontin either with the specific
purpose or inevitable result that she would do almost anything for him
in order to get more drugs from him. Using sex as a weapon or as a
form of payment for something is an act that society may well decide
should be punished criminally, and in such cases it is the aggressor --
not the victim -- who gets charged with a crime. Perhaps you could
describe a potential or hypothetical case where such charges may be
brought arising from your garden variety extramarital affair.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Seth Breidbart
A Michigan Attorney <miatt...@gmail.com> wrote:
>The Michigan Court of Appeals just held in a published, binding opinion
>that consensual sex which is linked to the commission of any other
>felony constitutes a form of aggravated rape.
So: a woman seduces a man in order to persuade him to be the getaway
driver when she robs a bank. _Who_ committed the "aggravated rape"?
A couple uses a stolen credit card to rent an expensive hotel room and
they have sex in it; who raped whom? (OK, they both raped the hotel,
but that's not the issue.)
A married couple has sex on a stolen bed. Same question.
"If the law say that, then the law is a ass."
Seth
Meano...@yahoo.com
implies that adultery involving penetration, without more, is
punishable by life imprisonment.]
I'm originally from Michigan and have a deep, abiding respect for what
has been called the Finest Court in the Nation. To add color:
The Michigan Supreme Court will now have the opportunity to consider
once again whether Michigan courts are supposed to interpret statutes
literally, even when the result is totally bat-guano insane. Typos?
Feh. Logical impossibilities? It doesn't matter. Under current
jurisprudence, the Michigan Supreme Court is really, really deferential
to text.
The instant case was pushed by the office of Mike Cox, Michigan's
Attorney General. (Fun fact: In an unrelated matter, Mr. Cox admitted
to adultery in 2005. The coincidence has not been lost on copywriters
looking for an angle on the story.)
The instant case was *not* a prosecution for adultery. It was a guy
trading prescription painkillers to a cocktail waitress (and maybe
several others) for sex. If the papers are quoting the Michigan
prosecutors' club correctly, the most recent conviction for adultery
was in 1971. Frankly, I don't know whether to consider that distant or
recent.
Michigan now has:
(a) the above-mentioned judicial deference to legislative work product;
and
(b) a legislature with rookies all over the place.
Fun fact: Michigan voters amended the state constitution, adopting term
limits, in 1992. The clock started running on the state senators (who
ran for rep after two more terms) and state representatives (who ran
for senate after three more terms). Let's get out the old HP12C here.
1992 + (2x4) + (3x2) = 2006
In the 2006 elections, term limits prevented the Senate Majority
Leader, Senate Minority Leader and House Minority Leader from running
for reelection. Also out were the committee chairs for Appropriations,
Government Operations and Health & Policy in the Senate and Employment
Relations, Training, & Safety, Government Operations, Appropriations
and Senior Health, Security & Retirement in the House.
--
I am not your lawyer. This is not legal advice.
I don't know squat about Michigan appellate practice. I do know that I
couldn't report the reinstatement of the CSC charge against Waltonen
with anything even approaching the neutral tone that A Michigan
Attorney used.
John Hyde
> The Michigan Court of Appeals just held in a published, binding opinion
> that consensual sex which is linked to the commission of any other
> otherwise law-abiding woman who commits adultery could spend the rest
> of her life behind the walls of a prison.
Uhhh, Ok I don't get it. The consensual sex with a person not your
spouse is the adultery. So what is the "other felony?" Is Adultery a
felony?
Dick Adams
> The Michigan Court of Appeals just held in a published, binding
> opinion that consensual sex which is linked to the commission
> of any other felony constitutes a form of aggravated rape.
Sounds right to me!
> Under this holding, an otherwise law-abiding woman who commits
> adultery could spend the rest of her life behind the walls of
> a prison.
This is a quantum stretch of the imagination. The word
"adultery" does not appear at all in the opinion cited below.
Perhaps you were thinking of another case?
> In Michigan, forcible rape and all lesser sex crimes have been
> re-defined in various degrees under the moniker "Criminal Sexual
> Conduct" (CSC). ..... Lack of consent to the contact is not an
> element of the crimes; however, consent can be an affirmative
> defense in some cases.
Consent is definitely an affirmative defense to the charge rape.
In the case cited, Michigan v. Waltonen, the defendent raised
that defense at trial, the trial court quash the rape charge,
and the prosecution appealed. A three judge panel decided that
since the defendant was commiting a felony in order to solicit
the consent, the consent is without merit {Those are my words}.
> Some lawyers and other community members are concerned that
> the new holding will be used as leverage in divorce cases.
This must be the "Chicken Little - The Sky Is Falling" Club.
> ....
> In addition, a divorce or child support litigant could accuse
> a spouse of philandering, and use the resulting police
> investigation as an evidence-gathering tool at public expense.
Michigan v. Waltonen is not about philandering. It is about
being estopped from using consent derived from the commission
of a felony against the victim.
> The Court's opinion can be found at:
> http://courtofappeals.mijud.net/resources/asp/dssearch.asp?casenumber=270229&R1=V2&Submit1=Search
One more reason why TinyUrl is a great idea:
http://tinyurl.com/3c539g
Dick - I never was an attorney. The only reason I know where
the Law School is located is that I could see it from
my office in the Business School.
Dick Adams
>> The Michigan Court of Appeals just held in a published, binding
>> opinion that consensual sex which is linked to the commission
>> of any other felony constitutes a form of aggravated rape.
> So: a woman seduces a man in order to persuade him to be the
> getaway driver when she robs a bank. _Who_ committed the
> "aggravated rape"?
> ....
Clever sarcasm! But, IMRHO, the OP misstated the opinion.
Upon reading the opinion, it is my opinion that the Court of
Appeals of the State of Michigan is simply stating the
obvious: consent derived from a felony may not be used as an
affirmative defense.
Example: A man is bulgarizing a house. The woman who owns the
house comes home. As he about to bind and gag her, he notices
her wedding ring and tells her to give it to him. She begs
him to let her keep it. He says "If you'll have sex with me,
you can keep it." Her consent is the fruit of his felony and
should not be allowed as an affirmative defense to the charge
of aggravated rape.
Daniel R. Reitman
<miatt...@gmail.com> wrote:
>The Michigan Court of Appeals just held in a published, binding opinion
>that consensual sex which is linked to the commission of any other
>felony constitutes a form of aggravated rape. Under this holding, an
>otherwise law-abiding woman who commits adultery could spend the rest
>of her life behind the walls of a prison.
>. . . .
I recall that Joshua Dressler, in his Understanding Criminal Law,
noted that CSC I could theoretically be construed to include sex
between two criminals during the commission of a nonsexual offense.
Dan, ad nauseam
Stuart A. Bronstein
>
>> Uhhh, Ok I don't get it. The consensual sex with a person not
>> your spouse is the adultery. So what is the "other felony?" Is
>> Adultery a felony?
>
>
> And don't even THINK of moving in with your ex-spouse:
>
> http://legislature.mi.gov/doc.aspx?mcl-750-32
But after Lawrence v. Texas, 539 U.S. 558 (2003), can adultery still be
a valid criminal offense?
You can see the opinion here: http://tinyurl.com/fei9
(Free registration may be required)
Stu
John F. Carr
>
>> In article <hnlvq2lakol4t9qpomak8pcf6qn1nim...@4ax.com>,
>> A Michigan Attorney wrote:
>>
>> >The Michigan Court of Appeals just held in a published, binding opinion
>> >that consensual sex which is linked to the commission of any other
>> >felony constitutes a form of aggravated rape.
>
>
>No CSC because no felony.
What about receiving stolen property, if they know the bed is
stolen and the value of the bed exceeds the felony threshold?
As for adultery, if adultery involves sexual conduct by definition
then I would argue that the more specific crime of adultery should
be charged in place of the more general crime of rape. I assume
Michigan follows the standard test for charging multiple crimes out
of the same act: each crime must require proof of a fact the other
does not. If adultery always proves CSC, but not the reverse, and
adultery has a lesser punishment then the legislature must have
intended adultery alone to be charged.
--
John Carr (j...@mit.edu)
Mike
> On Jan 19, 7:43 am, John Hyde <E...@netscape.net> wrote:
>
>> Uhhh, Ok I don't get it. The consensual sex with a person not your
>> spouse is the adultery. So what is the "other felony?" Is Adultery a
>> felony?
>
Punishment่ผธny person who shall commit adultery shall be guilty of a
felony; and when the crime is committed between a married woman and a
man who is unmarried, the man shall be guilty of adultery, and liable to
the same punishment.
And adultery is defined at http://legislature.mi.gov/doc.aspx?mcl-750-30
as "Definition่ผธdultery is the sexual intercourse of 2 persons, either
of whom is married to a third person."
Now is it just me or does that seem to say/imply that if a married man
and an unmarried woman commit adultery, only the married man is guilty
but not the unmarried woman (since they took pains to say otherwise when
it's the woman who's married?) Wouldn't it have been clearer, if they
meant for both parties to be guilty, if they'd said "all persons engaged
in sexual intercourse, when one or both are married to a third party,
are guilty of adultery and liable to the same punishment"?
The way they make it look is like:
Married man, married woman: both guilty.
Married man, unmarried woman: only the man is guilty.
Unmarried man, married woman: both guilty.
Stuart A. Bronstein
>>> A Michigan Attorney wrote:
>>>
>>> >The Michigan Court of Appeals just held in a published, binding
>>> >opinion that consensual sex which is linked to the commission
>>> >of any other felony constitutes a form of aggravated rape.
>>
>>> A married couple has sex on a stolen bed.
>>> [_Who_ committed the "aggravated rape"?]
>>
>>No CSC because no felony.
And as I recall from the opinion, the statute says it has to be a part
of another felony, not just incidental to it.
> What about receiving stolen property, if they know the bed is
> stolen and the value of the bed exceeds the felony threshold?
Based on the apparent wording of the statute I'd think that wouldn't be
a violation. But it would if the couple broke into a closed department
store for the purpose of using a bed there for their illicit purposes.
Stu
Mike
> On Jan 19, 7:43 am, Jonathan Biggar <j...@floorboard.com> wrote:
>
>> A Michigan Attorney wrote:
>>> The Michigan Court of Appeals just held in a published, binding opinion
>>> that consensual sex which is linked to the commission of any other
>>> felony constitutes a form of aggravated rape. Under this holding, an
>>> otherwise law-abiding woman who commits adultery could spend the rest
>>> of her life behind the walls of a prison.
>> That's a ridiculous reading of the ruling.
>
> footnote 8.
Actually, it seems they were arguing exactly the OPPOSITE in that they
said "'...felony'...refers to any felony OTHER than criminal sexual
conduct. (emphasis in original)" and then goes on to say that
"technically, anytime a person engages in...an adulterous
relationship...he or she is guilty of CSC I."
I.e. it looks like they're saying that if you construed it strictly,
even adultery could trigger such a violation but they're only
considering it to be triggered when the other felony is NOT a
sexually-related felony so that such adulterous relationships, even
though technically a a violation, would not be thusly charge-able.
But then again, that's just my lay-person's reading on it.
Mike
The court did rule that the sex had to be related to the felony in some
way. So the example of another poster of a woman having sex with a man
in order to get him to agree to be the get-away car driver for a bank
robbery would fall under this statute but them simply falling to the
vault floor in the throes of passion and having at it (not in the other
person's example) might not qualify as a violation under this statute.
True, they engaged sin sex during the robbery but it wasn't really as a
part and parcel OF the robbery but was merely incidental (although maybe
some "lewd in public" law may fit here.)
Then again, I'm not a lawyer so what do I know? :)
Meano...@yahoo.com
a felony and Stuart A. Bronstein asked:]
> But after Lawrence v. Texas, 539 U.S. 558 (2003), can adultery
> still be a valid criminal offense?
Can adultery still be a valid criminal offense? Sure. Were my client
charged with it I might copy Justice Scalia's Lawrence dissent verbatim
in my briefs, but Lawrence has been interpreted pretty narrowly.
Lawrence and Garner were convicted of engaging in a private, consensual
act of sodomy with a member of the same sex. The facts were not in
question and the act was clearly violative of Texas law. Upholding the
Texas law, a Texas intermediate appeals court relied on a 1986 USSC
decision (Bowers) which had upheld a very similar Georgia statute*. The
Texas Supreme Court declined review, but the USSC granted cert.
The Lawrence court explicitly overruled** Bowers and struck down the
Texas law but danced around the question of basis for review. The
holding in Lawrence is essentially, "Whoops. The Stevens dissent in
Bowers was right. Our bad."
Justice Scalia called the majority on this. If you read the Lawrence
opinion, it's quite clear that the majority doesn't like
anti-homosexual laws and that Bowers is overturned. What is not clear
is how the decision is reached. That is, is the standard rational
basis? Strict scrutiny? Something old in the middle like rational basis
with bite or intermediate scrutiny? Something new?
Fun Fact! There's a section in the Scalia dissent in which Justice
Scalia channels the Seinfeld episode "The Outing." Justice Thomas
writes a separate dissent specifically to say, "not that there's
anything wrong with that."
Justice Scalia concludes, quite reasonably in my opinion, that if the
Lawrence standard is rational basis then legislating on moral grounds
is suspect. Justice Kennedy quotes the following from Justice Stevens'
Bowers dissent and makes it the holding in Lawrence:
"Our prior cases make two propositions abundantly clear. First, the
fact that the governing majority in a State has traditionally viewed a
particular practice as immoral is not a sufficient reason for upholding
a law prohibiting the practice; neither history nor tradition could
save a law prohibiting miscegenation from constitutional attack.
Second, individual decisions by married persons, concerning the
intimacies of their physical relationship, even when not intended to
produce offspring, are a form of "liberty" protected by the Due Process
Clause of the Fourteenth Amendment. Moreover, this protection extends
to intimate choices by unmarried as well as married persons. 478 U.S.,
at 216."
539 U.S., at 577-78. Those of you who picked up the Substantive Due
Process language may rest assured that Justice Scalia had a few words
to say on that score.
Justice Scalia concludes that the Lawrence decision undercuts state
laws proscribing, among other things, adultery. Subsequent case law
has, so far, limited Lawrence's application to laws targeted at
homosexuals.
* The Georgia statute was facially neutral while the Texas statute was
explicitly applied to same-sex conduct. As applied, the distinction
wouldn't have allowed the Bowers and Lawrence results to be reconciled
and the Lawrence court didn't bother to try.
** The USSC doesn't explicitly overrule itself that often, so -
substance aside - this is a good case to remember if you're looking for
how the justices respect stare decisis.
Mike Jacobs
> Now is it just me or does that seem to say/imply that if a married man
> and an unmarried woman commit adultery, only the married man is guilty
> but not the unmarried woman (since they took pains to say otherwise when
> it's the woman who's married?)
I'm no MI lawyer, but that's also how I would read it.
> The way they make it look is like:
>
> Married man, married woman: both guilty.
> Married man, unmarried woman: only the man is guilty.
> Unmarried man, married woman: both guilty.
I think that's a correct reading, and IMO this (as well as all
anti-adultery criminal statutes) goes back to the ancient view (still
enshrined in Anglo-American cullture until mid-20th century feminism
became mainstream, and still occasionally found in the law to this day,
in assorted anachronisms like this) that a wife is her husband's
chattel, along with his slaves, children, and livestock (the word
"cattle" comes from the same root as "chattel"), to do with as he
pleases, since he is absolute king of his home.
Taking another man's wife was an offense for the same reason that
taking his sheep, or his corn, or his slaves would be -- they belonged
to him, legally, in the sense that he had property rights in them.
The married woman had no such property rights in her husband, so she
had nothing legally to complain about if _he_ screwed around
extracurricularly. Nor did she have any legal right to give _herself_
away consensually; she was legally a "person under disability", like
slaves, children, and mental incompetents, with no legal _right_ to
give her own consent, to testify, to enter contracts, etc. Just read
any good Victorian novel. Of course, that doesn't mean she couldn't
make her husband's life miserable if he did cheat on her, and "nice" or
religiously observant husbands were expected to be faithful, but the
law had no say. The only time a man (whether married or unmarried)
would get in legal trouble for this is if the other woman were someone
_else's_ wife. In that case, the complaining victim in the adultery
prosecution would be the other man whose wife he stole, not his own
wife he cheated on.
John F. Carr
Mike Jacobs <mjaco...@gmail.com> wrote:
>Mike wrote:
>> The way they make it look is like:
>>
>> Married man, married woman: both guilty.
>> Married man, unmarried woman: only the man is guilty.
>> Unmarried man, married woman: both guilty.
>
>I think that's a correct reading, and IMO this (as well as all
>anti-adultery criminal statutes) goes back to the ancient view (still
>enshrined in Anglo-American cullture until mid-20th century feminism
>became mainstream, and still occasionally found in the law to this day,
>in assorted anachronisms like this) that a wife is her husband's
>chattel, along with his slaves, children, and livestock (the word
>"cattle" comes from the same root as "chattel"), to do with as he
>pleases, since he is absolute king of his home.
Remember, there was no contraception and no reliable
paternity testing. A married women who messed around
might end up bearing a child not her husband's. In
those days children born during a marriage were the
responsibility of the husband. The prospect of forcing
a man to raise somebody else's child is grounds to treat
adultery involving a married woman differently from other
types.
There was also a separate crime of fornication in the old
days that might fill in any gaps in the definition of
adultery.
It was reported several years ago that adultery with certain
members of the royal family was still a capital offense in
England. Royal affairs can produce illegitimate heirs to
the throne. The crime made more sense when the king ruled
by grace of God instead of acting as a meaningless ornament
by grace of Parliament.
>Of course, that doesn't mean she couldn't make her husband's life
>miserable if he did cheat on her, and "nice" or religiously observant
>husbands were expected to be faithful, but the law had no say.
According to William Manchester's biography of Winston
Churchill it was nearly impossible for a woman in Victorian
England to get a divorce but if she did succeed, say because
the adultery was too flagrant to ignore, the man was ruined.
--
John Carr (j...@mit.edu)
Dick Adams
> Now is it just me or does that seem to say/imply that if a married man
> and an unmarried woman commit adultery, only the married man is guilty
> but not the unmarried woman (since they took pains to say otherwise when
> it's the woman who's married?) Wouldn't it have been clearer, if they
> meant for both parties to be guilty, if they'd said "all persons engaged
> in sexual intercourse, when one or both are married to a third party,
> are guilty of adultery and liable to the same punishment"?
>
> The way they make it look is like:
>
> Married man, married woman: both guilty.
> Married man, unmarried woman: only the man is guilty.
> Unmarried man, married woman: both guilty.
It would be interesting to read a Michigan case where the third
situation occured "Unmarried man, married woman". But adultery
ususlly goes unprosecuted.
On a lighter note: If it looks like what you suspect, I suspect
the statute was written by a mother-in-law. <g>
Dick
John F. Carr
<Meano...@yahoo.com> wrote:
>Michigan now has:
>(a) the above-mentioned judicial deference to legislative work product;
>and
>(b) a legislature with rookies all over the place.
Massachusetts has long serving legislators who make sloppy law.
The "Committee on Bills in the Third Reading" is supposed to
clean up bills before passage. It hasn't done good work for
about a decade.
--
John Carr (j...@mit.edu)
Meano...@yahoo.com
>> Michigan now has:
>> (a) the above-mentioned judicial deference to legislative work product;
>> and
>> (b) a legislature with rookies all over the place.
John F. Carr replied:
> Massachusetts has long serving legislators who make sloppy law.
>
> The "Committee on Bills in the Third Reading" is supposed to
> clean up bills before passage. It hasn't done good work for
> about a decade.
Well, that's more or less exactly Judge Murphy's point.
To reiterate, what the Waltonen court is doing is pointing out is the
effect of extreme judicial deference. The Waltonen decision came down
from an intermediate appeals court. One needn't be particularly careful
in reading between the lines and footnotes to get the point, which was
to upbraid the Michigan Supreme Court for going way, way out in the
direction of strict adherence to the text of a statute. Sometimes, the
legislature screws up.
For a Michigan practitioner, the Waltonen decision is not primarily
about criminal sexual conduct or adultery. It asks a broader question
of jurisprudence. The adultery twist is sizzle and attracts attention,
but the real point Judge Murphy was trying to make in Charlevoix was,
"Hey! Supreme Court! Do you *really* want us to follow the letter of
the law? OK, here's what you get." An intermediate appeals court judge
can't actually show disrespect to the state Supreme Court like that.
But he can throw up his hands, admit to being "curtailed by the
language of the statute" from exercising any judgment and drop footnote
8.
The Massachusetts equivalent would be for the SJC to get a bunch of new
justices, then announce that they're going to strictly enforce the
language of bills as passed - even when they're nonsensical, stained
with beer and written on a Bull and Finch napkin.
Term limits may make the legislature less entrenched. And they might
increase the importance of committee staff and the influence of
lobbyists. But term limits certainly don't improve the quality of the
work product and that problem is exacerbated in Michigan by the Supreme
Court's relatively new jurisprudence.
--
I am not your lawyer. This is not legal advice.
Cheers was hilarious but it's been gone for thirteen years...time to
change the name back.
John Hyde
> On Jan 19, 7:43 am, John Hyde <E...@netscape.net> wrote:
>
>> Uhhh, Ok I don't get it. The consensual sex with a person not your
>> spouse is the adultery. So what is the "other felony?" Is Adultery a
>> felony?
>
>
> And don't even THINK of moving in with your ex-spouse:
>
> http://legislature.mi.gov/doc.aspx?mcl-750-32
>
Ok, but the definition of adultery is:
Definition่ผธdultery is the sexual intercourse of 2 persons, either of
whom is married to a third person
http://legislature.mi.gov/doc.aspx?mcl-750-29
It is the exact same conduct that makes it CSC I. That's why I don't
get that there is an "other felony." Sure there is another statute that
covers the same conduct, but there is no additional element, it's not
really a separate crime?
Well, I probably just displayed my ignorance of the criminal law. So
please feel free to correct. But here's my thought. If I hit someone
in the head with a baseball bat. I have probably committed an Assault
I, and Assault II, and III and IV. But my understanding is that, while
you might charge the "lesser included" offenses, I can only be convicted
of one offense, because there was only one swing of the bat. So under a
regime that requires life for violent felons convicted of multiple
violent felonies, the DA can't argue at sentencing: Judge, here we have
John who has just been convicted of three felonies and one A
misdemeanor, throw the book at him . . ."
Right???
Stuart A. Bronstein
> To reiterate, what the Waltonen court is doing is pointing out is
> the effect of extreme judicial deference. The Waltonen decision
> came down from an intermediate appeals court. One needn't be
> particularly careful in reading between the lines and footnotes to
> get the point, which was to upbraid the Michigan Supreme Court for
> going way, way out in the direction of strict adherence to the
> text of a statute. Sometimes, the legislature screws up.
Is it the court's job to read the minds of the legislators and figure
out when they mean what they say and when they don't? When there is
an ambiguity I think the court is better off figuring out the overall
intent of the legislation and ruling in a way that is consistent with
that. But when there is no ambiguity, when the language is clear
(even though stupid) it's the legislature's job to fix it.
> For a Michigan practitioner, the Waltonen decision is not
> primarily about criminal sexual conduct or adultery. It asks a
> broader question of jurisprudence. The adultery twist is sizzle
> and attracts attention, but the real point Judge Murphy was trying
> to make in Charlevoix was, "Hey! Supreme Court! Do you *really*
> want us to follow the letter of the law? OK, here's what you get."
And if the court can trust the legislature to mean what it says this
time, when can they?
I'm certainly not what some would call a "strict constructionist." I
remember reading an early case when a judge said that wiretapping
without a warrant is ok because the Constitution didn't say anything
about telephones - that's the kind of nonsense you can end up with.
But at the same time it's the legislature's job to create the laws
and the court's job to resolve conflicts. If the court started
second-guessing every statute, there's be chaos.
Stu
Dick Adams
> For a Michigan practitioner, the Waltonen decision is not
> primarily about criminal sexual conduct or adultery. It asks a
> broader question of jurisprudence. The adultery twist is sizzle
> and attracts attention, but the real point Judge Murphy was trying
> to make in Charlevoix was, "Hey! Supreme Court! Do you *really*
> want us to follow the letter of the law? OK, here's what you get."
The charge was aggravated rape. Adultery is not raised in the
case, only in footnote 8.
My reading of this case says a consent coerced while already
committing a felony against a victim may not be used as an
affirmative defense to the subsequent felony. He raped her.
Stuart A. Bronstein
Except, as I recall, her testimony was that she consented, that she was
not coerced even though it appeared objectively as if she had been. So
the adultery charge was brought in to turn it into rape.
Stu
Barry Gold
>The charge was aggravated rape. Adultery is not raised in the
>case, only in footnote 8.
>
>My reading of this case says a consent coerced while already
>committing a felony against a victim may not be used as an
>affirmative defense to the subsequent felony. He raped her.
I think a libertarian -- or anybody else who thinks our current drug
laws are a prime example of legislative stupidity -- might have trouble
with that interpretation. The "felony against the victim" was
furnishing drugs -- drugs that she wanted, requested, and was willing
to exchange sex for.
It became a "class 1 sexual felony" because he gave her the drugs
directly in exchange for sex, instead of just giving her money and
letting her buy the drugs from somebody else. So, the felony of
"furnishing drugs", combined with the prostitution (exchanging sex for
a tangible benefit(*)) raised the crime from a misdemeanor punishable
by a fine -- and in fact comparable to running a red light in terms fo
potential punishment -- to a "sex crime" punisable by life in prison.
I think the court was quite right to point out that this is pure
hogwash, even if deference to the plain meaning of the law requires
upholding the conviction.
I also think it's too bad that the court cannot refer a case like this
to the State Bar for appropriate action against the DA who filed the
charges for abuse of process.
That doesn't sound like "rape" to me.
--
I pledge allegiance to the Constitution of the United States of America, and
to the republic which it established, one nation from many peoples, promising
liberty and justice for all.
Feel free to use the above variant pledge in your own postings.
Daniel R. Reitman
<spam...@lexregia.com> wrote:
>Is it the court's job to read the minds of the legislators and figure
>out when they mean what they say and when they don't? When there is
>an ambiguity I think the court is better off figuring out the overall
>intent of the legislation and ruling in a way that is consistent with
>that. But when there is no ambiguity, when the language is clear
>(even though stupid) it's the legislature's job to fix it.
>. . . .
In Oregon, the rule is that the court is supposed to determine the
probable intent of the legislature. Or. Rev. Stat. ยง 174.020(1)(a).
Where there is not clear precedent, the courts have developed a three
stage process:
1. Plain meaning from text and context;
2. Legislative history; and
3. Resort to maxims of construction.
PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143
(1993).
Daniel Reitman
Stuart A. Bronstein
> "Stuart A. Bronstein" <spam...@lexregia.com> wrote:
>
>>Is it the court's job to read the minds of the legislators and
>>figure out when they mean what they say and when they don't?
>
> probable intent of the legislature. Or. Rev. Stat. ยง
> 174.020(1)(a). Where there is not clear precedent, the courts have
> developed a three stage process:
>
> 1. Plain meaning from text and context;
> 2. Legislative history; and
> 3. Resort to maxims of construction.
I think that's a very sensible approach.
There was a suggestion that the legislation at issue is, well, fairly
stupid and the legislature couldn't possibly have meant what they
clearly said.
But no matter how tempted I might be to second guess legislators and
try to explain away clear language by arguing that it's bad policy,
doing so opens the door for recasting even legislation I think is
fabulous policy, because some judge doesn't agree with me.
Stu
Mike
> rda...@smart.net (Dick Adams) wrote:
>> My reading of this case says a consent coerced while already
>> committing a felony against a victim may not be used as an
>> affirmative defense to the subsequent felony. He raped her.
>
> Except, as I recall, her testimony was that she consented, that she was
> not coerced even though it appeared objectively as if she had been. So
> the adultery charge was brought in to turn it into rape.
No, the distribution of drugs was the felony here that turned the sex
into a rape charge (and it does say that, at times, she was saying "no"
to the sex and was forced or coerced into it anyway.) Adultery was only
mentioned in the footnote when they said "technically, even adultery is
a felony and would turn sex into rape" (or words to that effect) showing
how the law could be taken to the extreme.
Mike
> Dick Adams <rda...@smart.net> wrote:
>> The charge was aggravated rape. Adultery is not raised in the
>> case, only in footnote 8.
>>
>> My reading of this case says a consent coerced while already
>> committing a felony against a victim may not be used as an
>> affirmative defense to the subsequent felony. He raped her.
>
> I think a libertarian -- or anybody else who thinks our current drug
> laws are a prime example of legislative stupidity -- might have trouble
> with that interpretation. The "felony against the victim" was
> furnishing drugs -- drugs that she wanted, requested, and was willing
> to exchange sex for.
"At times, the victim would ask defendant to โstopโ when they were
having sex, which he would not always do right away, and she would then
push herself away if he did not stop on his own. The victim testified
that on another occasion she did not want to have sex with defendant, so
he began to chase her and ripped the pocket off her pants, and she ran
over to a gas station to ask for help."
Doesn't sound like it was totally consensual to me. But that wasn't
really an issue in the case/
Basically, what they said in the case was that consent wasn't a defense
here because the underlying felony was the delivery of drugs and there
is no consent defense to that.
Here's a hypothetical example:
I take some pictures of me and a woman having sex. I then post the
pictures on the web. There's two possible outcomes of that (in addition
to others that aren't mentioned here) and they are:
1) I get charged with pornography. This charge may be a felony and, if
so, that would make the sex a class 1 violation. There's no "consent"
defense to a porn charge so I would be convicted.
2) I get charged with some type of "invasion of privacy" that may be a
felony. Now in this case, I show that the woman agreed to the pictures
and even signed a model's release on them. So I have a valid defense
against the felony charge and thus the sex would not be a class 1
violation (because I was found innocent of the underlying "invasion of
privacy" charge.)
> It became a "class 1 sexual felony" because he gave her the drugs
> directly in exchange for sex, instead of just giving her money and
> letting her buy the drugs from somebody else. So, the felony of
> "furnishing drugs", combined with the prostitution (exchanging sex for
> a tangible benefit(*)) raised the crime from a misdemeanor punishable
> by a fine -- and in fact comparable to running a red light in terms fo
> potential punishment -- to a "sex crime" punisable by life in prison.
No, the underlying felony (delivery of a controlled substance) in
association with sex, period, constituted the class 1 felony. It didn't
matter what the sex was about, according to the court, but simply that
"(1) that a sexual penetration occurred and (2) that it occurred during
the commission of another felony." The prostitution charge didn't matter
at all in this and it was the delivery of the drugs that elevated a
otherwise possibly legal act (sex) into a felony (rape.)
Mike Jacobs
> I think a libertarian -- or anybody else who thinks our current drug
> laws are a prime example of legislative stupidity -- might have trouble
> with that interpretation. The "felony against the victim" was
> furnishing drugs -- drugs that she wanted, requested, and was willing
> to exchange sex for.
I'm a quasi-libertarian myself (a dyed-in-the-wool civil libertarian,
at least) and I think our current drug policy is stupid, but that
doesn't mean your conclusion follows from those premises.
Others who know more about MI law than I have indicated the statute in
question simply removes the defense of consent to a sexual act from a
charge of rape if the sex is committed in the course of some other
felony. You say that because the felony at issue here was simply
selling drugs, that was no different than paying a prostitute with
cash so she could buy drugs on her own. I disagree.
What was at issue in the cited case was a form of subtle coercion, of
someone who was NOT otherwise a prostitute-for-hire and (presumably)
would never have had sex with this lowlife hustler "for free", and who
was NOT an addict before she met him, but who was gradually led,
Svengali-like, into such a state of dependency on this particular
pusher to continue supplying the narcotic drugs to which he had
knowingly and willingly gotten her addicted, that she was in a very
real sense coerced into having sex with him to continue obtaining the
drugs. Whether or not the drugs were illegal, what this was an
example of is a classic abusive relationship, i.e. where the more
powerful person abuses that power he holds over the victim, to force
the victim to do something she otherwise would not do.
Now, that may not always be a prosecutable crime in many instances,
such as where it arises between domestic partners, for example, but it
is something that both the law and society frowns upon and tries to
find ways to prevent the less powerful member of such confrontations
from being truly victimized. Bosses, for example, are not supposed
to use their economic power over their secretaries to force them to
have sex. Teachers are not supposed to have sex with students,
doctors and shrinks are not supposed to use their Godlike powers to
have sex with patients, and lawyers are not supposed to comfort their
divorcee clients by having sex with them either. Whether or not the
less-powerful person appears to willingly consent, the law PRESUMES
that such relationships are improper because of the unequal power of
the participants. In some cases, such abuse can be treated as sexual
harassment, or as sexual assault, or (if the victim is underage,
regardless of "consent"), as child abuse.
The point is that the victim does NOT in fact really consent where
subjected to such coercion, even if she thinks she does, and the law
may make presumptions (such as in the case of "statutory rape" of a
willing underage victim, or as in the case at bar, where "consent" was
coerced in the commission of another felony) to fill in the gap where
"everybody knows" what "really" is happening, but where the frail
tools of the law (evidence, proof) may otherwise be lacking, allowing
some clever crooks to "slip thru the cracks" because what they did
wrong was too subtle to pin down. There is nothing unconstitutional
or improper about a prosecution relying on legal presumptions for a
conviction. The presumptions set by law are known in advance; they
furnish a bright-line test; and anyone who steps over that line knows
(or is presumed to know, since we are also all presumed to know the
law, another convenient presumption) that he does so at his peril.
Now, if the particular statute at issue created such a broad
presumption that many acts which society-at-large does NOT feel are
criminal (e.g. consensual adultery) may also be prosecuted as the
felony of rape, due to inept draftsmanship by a MI legislature made up
entirely of clueless novices, that is a separate issue. And if the
Supreme Court of MI is so set in its approach of strict literalism in
statutory construction that they refuse to do anything about it,
that's yet another issue. But as to the application of the presumtion
in the particular case, i.e. the pusher who used drugs as a carrot to
coerce sex from a waitress, I am not going to lose any sleep over that
one.
Rape is coercing someone to have sex who would otherwise be unwilling
to do so. Thus, I would differentiate between a person "in the
profession" who holds herself out knowingly and willingly to the
public as sex-for-hire, and e.g. the poor, destitute single mom who is
about to be evicted from her coldwater tenement but whom the landlord
coerces into having sex in exchange for that month's rent so her baby
won't starve. The law may not prosecute what he did as rape, but
just ask any feminist: that's what it is.
Stuart A. Bronstein
> Detroit Free Press columnist Brian Dickerson has provided some
> more insight into this case, including an interesting conversation
> with one of the judges who decided the appeal. According to
> Dickerson, Attorney General Mike Cox's office argued that the
> issue of consent was irrelevant -- not that consent was lacking
> (e.g., due to coercion via drug addiction). This is not
> surprising because if consent was at issue, the court could find
> that it was validly given, and the prosecutor would lose.
Makes sense - a type of statutory rape.
The problem I have with the concept of adultery being the felony that
turns the same act into rape is that normally when one act is the
essence of two different crimes, the prosecution is required to pick
one, and can't have the defendant convicted and punished for both. In
this case it is one act that is being treated as the aggrevating factor
for the same act to turn it into another crime. I don't think that's
good policy.
Stu
Seth Breidbart
Mike Jacobs <mjaco...@gmail.com> wrote:
>Rape is coercing someone to have sex who would otherwise be unwilling
>to do so. Thus, I would differentiate between a person "in the
>profession" who holds herself out knowingly and willingly to the
>public as sex-for-hire, and e.g. the poor, destitute single mom who is
>about to be evicted from her coldwater tenement but whom the landlord
>coerces into having sex in exchange for that month's rent so her baby
>won't starve. The law may not prosecute what he did as rape, but
>just ask any feminist: that's what it is.
Given the prevalence of "all sex is rape" among feminists, that
certainly isn't the first group whose opinions I'd consider.
In that hypothetical, what if some third party offers to pay her rent
in return for sex (either offering her cash, or calling in a favor
from the landlord)?
Seth
Barry Gold
>What was at issue in the cited case was a form of subtle coercion, of
>someone who was NOT otherwise a prostitute-for-hire and (presumably)
>would never have had sex with this lowlife hustler "for free", and who
>was NOT an addict before she met him, but who was gradually led,
>Svengali-like, into such a state of dependency on this particular
>pusher to continue supplying the narcotic drugs to which he had
>knowingly and willingly gotten her addicted, that she was in a very
>real sense coerced into having sex with him to continue obtaining the
>drugs.
Either you believe that people have free will and are responsible for
their actions, or you don't. If she has free will, then she *chose*
to accept drugs and become addicted to them. By now, anybody who
doesn't know that opiates, barbiturates, cocaine, and amphetamines are
addictive simply hasn't been paying attention(*).
(*) Granted, the government has a hand in creating this mess. By
insisting that Tetra-hydro-cannabinol is equally dangerous to these
other drugs, they make it easier to convince somebody that the
government is lying about the dangers of *all* illegal drugs. In
fact, the whole situation is created by the government. If she could
walk into CVS and buy her drugs for what it costs to manufacture and
distribute them, she wouldn't need to exchange sex for drugs -- she'd
just buy them out of pocket money the way people buy cigarettes and
coffee.
>Whether or not the drugs were illegal, what this was an
>example of is a classic abusive relationship, i.e. where the more
>powerful person abuses that power he holds over the victim, to force
>the victim to do something she otherwise would not do.
>
>Now, that may not always be a prosecutable crime in many instances,
>such as where it arises between domestic partners, for example, but it
>is something that both the law and society frowns upon and tries to
>find ways to prevent the less powerful member of such confrontations
>from being truly victimized. Bosses, for example, are not supposed
>to use their economic power over their secretaries to force them to
>have sex.
Oddly enough, that is "legitimate" (not prosecutable) if the boss
coerces people of both genders for sex. But if the boss has a
distinct preference and only bugs members on one gender, then *that*
is sexual discrimination and can lead to a civil suit.
>Teachers are not supposed to have sex with students,
>doctors and shrinks are not supposed to use their Godlike powers to
>have sex with patients, and lawyers are not supposed to comfort their
>divorcee clients by having sex with them either.
So much for Arnie Becker on L.A. Law.
But more seriously, I agree with you about those cases. But if simple
imbalance of power is enough to make sex illegal, many marriages and
domestic partnerships would qualify, as one person has most of the
economic power and the other, (usually a woman) may stay simply
because (s)he doesn't want to be deprived of the economic benefit.
And why only sex? It's OK to use economic power to "force" people to
pick up other people's trash, clean their restrooms, and do a variety
of other sometimes-unpleasant jobs. What's so special about sex? I
claim the whole thing arises out of St. Paul's sexual hangups, which
seem to have permeated American culture (and to a lesser extent
Western culture in general).
>The point is that the victim does NOT in fact really consent where
>subjected to such coercion, even if she thinks she does, and the law
>may make presumptions (such as in the case of "statutory rape" of a
>willing underage victim, or as in the case at bar, where "consent" was
>coerced in the commission of another felony) to fill in the gap where
>"everybody knows" what "really" is happening, but where the frail
>tools of the law (evidence, proof) may otherwise be lacking, allowing
>some clever crooks to "slip thru the cracks" because what they did
>wrong was too subtle to pin down. There is nothing unconstitutional
>or improper about a prosecution relying on legal presumptions for a
>conviction. The presumptions set by law are known in advance; they
>furnish a bright-line test; and anyone who steps over that line knows
>(or is presumed to know, since we are also all presumed to know the
>law, another convenient presumption) that he does so at his peril.
I'm not objecting to this general principle. But I *am* saying it's a
stupid, badly drafted law, and the appeal court was quite right to point
that out, as forcefully as they could.
Mike
> Mike Jacobs <mjaco...@gmail.com> wrote:
>> Bosses, for example, are not supposed
>> to use their economic power over their secretaries to force them to
>> have sex.
>
> Oddly enough, that is "legitimate" (not prosecutable) if the boss
> coerces people of both genders for sex. But if the boss has a
> distinct preference and only bugs members on one gender, then *that*
> is sexual discrimination and can lead to a civil suit.
Not quite. Mike's example was one of sexual harassment and not sexual
discrimination and can happen no matter what the sex of the harasser or
harassed is.
I.e. if I say "I'm not hiring you because you're male" or "you didn't
get the raise because you're female" then THAT'S discrimination. But if
I create a sexually hostile environment by approaching ALL my
secretaries, both male and female, for sex then I AM guilty of sexual
harassment but NOT of any type of discrimination (and, oddly enough, if
I only approach females or only males for sex, I could actually be
accused of BOTH harassment by those who didn't want the offer of sex and
did get it AND discrimination by those who didn't get the offer but may
have wanted it.)
Mike Jacobs
> In article <ku54s2l92ghnoejql1q3lh4lcibdass...@4ax.com>,
> Given the prevalence of "all sex is rape" among feminists, that
> certainly isn't the first group whose opinions I'd consider.
Got you thinking, though, didn't it? I'm not agreeing that "all sex
is rape" either, but I do think it not beyond the bounds of reason to
say "all forced sex is rape" regardless of the means used to coerce
the unwilling participant.
Nor do I mean to imply that under current law, or under any reasonable
extension of the law, "economic force" such as in the landlord example
could be prosecutable as a crime. But one might have said the same
thing a few decades ago about a rape prosecution against a husband who
physically forced his wife to have sex when she was unwilling. Such
prosecutions are, if not common these days, at least well known to
exist. The law has changed.
I guess what I'm angling for is a world where relationships (of all
kinds -- economic, sexual, international) are increasingly built upon
cooperation for enlightened mutual self-interest rather than naked,
screw-the-other-guy competition. IN other words, compete with your
independent opponents, not with your partners. I know we're a long
way off from that world and may never get there -- naked competition
has been the Way of All Flesh since Cain slew Abel. But a large part
of what modern civilization -- and in particular the rule of law --
tries to do is to put limits on naked competition and require at least
a measure of consideration for the rights and needs of others.
In context of sexual relations, a mutual choice to engage in sex by
partners who are of co-equal standing in that relationship, and who
freely consent, without any complusion, economic or otherwise, is the
ideal. Of course most relationships, including probably most
marriages, fall short of that ideal. Which does NOT make such
relations into the prosecutable crime of rape. It just means they've
got some serious issues to work out for both of them to be truly
happy.
IIRC the feminist syllogism you cite -- which NOT all feminists agree
with -- goes something like this.
primary premise -- all forced sex is rape.
secondary premise -- sex between people who are not co-equal in power,
compelled by any factor whatsoever, be it economic, psychological,
physical -- is forced sex.
intermediate conclusion -- all sex between people who are not co-equal
is rape.
tertiary premise -- male-female relationships (in present day
paternalistic society) are not co-equal and will not be until women
are treated as equals in every way with men.
final conclusion -- all sex between men and women is rape.
I do not personally agree with that logic, or with the conclusion. I
believe that even though, statistically, men as a group and women as a
group are not yet equal in economic and political power, it is
entirely possible, even common, for individual couples to have a
loving, co-equal relationship. However, that is a relatively modern
invention of romantic love, and marriage as we know it has always been
primarily an economic and political alliance between potentially
warring partners and their families, whether we're talking about King
Henry and Eleonor of Aquitaine ("The Lion In Winter") or Ralph and
Alice Kramden.
> In that hypothetical, what if some third party offers to pay her rent
> in return for sex (either offering her cash, or calling in a favor
> from the landlord)?
I would posit that, if the benefactor were someone she wanted to have
sex with anyway, e.g. her chosen boyfriend, then there is no
compulsion involved and thus no "moral" rape (as stated above I don't
think either example rises to the level of "criminal" rape). If it's
just the sleazy guy in the apartment next door who overhears the
lady's plight and offers to "help her out" in exchange for sexual
favors, I don't see that in any way morally different than if the
landlord is the one who does it.
Barry Gold
>The point is that the victim does NOT in fact really consent where
>subjected to such coercion, even if she thinks she does, and the law
>may make presumptions (such as in the case of "statutory rape" of a
>willing underage victim, or as in the case at bar, where "consent" was
>coerced in the commission of another felony) to fill in the gap where
>"everybody knows" what "really" is happening, but where the frail
>tools of the law (evidence, proof) may otherwise be lacking, allowing
>some clever crooks to "slip thru the cracks" because what they did
>wrong was too subtle to pin down.
I missed that sentence when I was commenting earlier. What a
dangerous concept -- that the law should somehow be able to "get"
people even though the evidence and proof may be lacking, because "what
they did wrong was too subtle to pin down".
Again, why apply this only to sex? May be we should just make it a
general rule of law: if you do something that "everybody knows" is
wrong, we will punish you even though we haven't specifically made a
law against it. Why not throw the rule of law out the window and just
punish whoever the prosecutor thinks did something wrong -- or anybody
who does "something" that a prosecutor can convince a jury was
somehow "wrong".
>There is nothing unconstitutional
>or improper about a prosecution relying on legal presumptions for a
>conviction. The presumptions set by law are known in advance; they
>furnish a bright-line test; and anyone who steps over that line knows
>(or is presumed to know, since we are also all presumed to know the
>law, another convenient presumption) that he does so at his peril.
I would like to try substituting another test instead of the "bright
line"(*). When certain legally-defined kinds of power imbalance
exist, there is a _rebuttable_ presumption of undue influence and/or
non-physical coercion. The standard for rebutting that presumption
could slide, depending on the age of the "victim". At one end we
would have a "victim" who is only slightly below legal age, where it
would be sufficient for the defendant to establish reasonable
doubt.(+) Somewhere in the middle would be a younger post-puberty
"victim", and the defendant would have to establish by "preponderance
of evidence" that the consent was uncoerced. At the other extreme
would be a pre-puberty "victim", where the defendant would have to
prove beyond a reasonable doubt that consent was uncoerced.
Or maybe that's too complicated. But at the very least, I think there
should be testimony by the "victim" that "I really didn't want to,
but under the circumstances I didn't think I could say no," or even "I
consented at the time, but afterward I felt used."
It probably wouldn't change the outcome in the particular case at
issue here, but I want to avoid the kind of miscarriages of justice I
read about from time to time:
1. The female teacher who was convicted of sex with an underage boy,
even though (by his own statements) they were mutually in love, and
when he finally became of age they got married and are AFAIK
still living happily together.
2. Another female teacher who was convicted of a crime for having sex
with an underage student. Said student had bragged to his buddies
that he could seduce the teacher, he set about doing it and succeeded.
She was convicted because he then bragged of his success, not because
he was in any way coerced.
Mind you, I think both of these cases show bad judgment by the adult
involved. I wouldn't mind if they were fired from their jobs for
their bad judgment, I just object to their being convicted of "rape"
with a clearly willing "victim".
(+) standard of proof remains unchanged, but the burden of proof has
shifted.
(*) Not so bright line -- even when the "victim" is underage, a
prosecutor (usually) won't bother with a case when the "perpetrator"
is fairly close in age (2-3 years). At least partly because they know
a jury is going to be reluctant to convict somebody under those
circumstances. Some states have enshrined that rule in their
"statutory rape" laws, in others it's a matter of prosecutorial
discretion.
Mike Jacobs
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >fill in the gap where
> >"everybody knows" what "really" is happening, but where the frail
> >tools of the law (evidence, proof) may otherwise be lacking, allowing
> >some clever crooks to "slip thru the cracks" because what they did
> >wrong was too subtle to pin down.
>
> I missed that sentence when I was commenting earlier. What a
> dangerous concept -- that the law should somehow be able to "get"
> people even though the evidence and proof may be lacking, because "what
> they did wrong was too subtle to pin down".
Sorry, Barry, I think we just have a misunderstanding. I'm not
suggesting that, and while I am also not contemplating that you are
setting this up as a "straw man" argument so you can knock it down
easily, I think you know from our years of mutual participation in
this NG that I am more reasonable than that.
In a nutshell all I am saying is that presumptions have a useful and
valid role in the law, and their purpose indeed is to fill in gaps in
proof where it would otherwise be lacking, but where based on decades
or centuries of worldy experience and common sense, we know that a
certain combination of facts is enough to infer more likely than not
that a certain other, needed-to-be-proven fact exists. And just to be
extra clear, I am talking mainly about rebuttable presumptions --
those which substitute for missing evidence, but which the jury may or
may not accept depending on what other evidence the opponent comes up
with that tends to reduce the likelihood that the pertinent missing
fact exists; and also we are only talking about presumptions that,
AFTER they are created by statute or a judicial ruling, become the
law, presumably known to all and providing a guide to behavior, for
acts that occur AFTER that point.
> Again, why apply this only to sex?
We do not. Just to give a few other examples:
Res ipsa loquitur. When an accident happens involving some
instrumentality that is completely within the defendant's control, and
something happens to it that normally does not happen except in the
absence of negligence, and there is no other plausible explanation
offered, the jury is free to infer from the happening of the accident
that it was due to the defendant's negligence. This presumption is an
exception to the usual rule that negligence cannot be inferred from
the mere happening of an accident. It is applied, for example, in
the case of something like an elevator accident, where nobody (except
the building operator, and they're not talking) seems to know exactly
what happened, but it is simply agreed in society that it is
unacceptable for an elevator door to open when the car is not there so
that people fall thru the door and get injured.
Strict product liability in tort. Arising from situations where the
law of negligence proved inadequate to pin down exactly what a
defendant manufacturer did wrong to cause a product to be defective,
this rule (a kind of presumption, really) allows a jury to impose tort
liability on a manufacturer where the plaintiff's proof shows that
defendant placed the product in commerce and that, in the condition
where it left the factory, it was unreasonably dangerous in a way that
was beyond the expectations of the average reasonable consumer when
used in a foreseeable,not necessarily intended, way, by the
consumer. Thus, for instance, a folding chair that collapses when
someone stands on it and causes injury can be prosecuted as defective
even though the maker intended the chair to be sat upon, not stood
upon, because it is foreseeable that some people will use the chair as
a stepstool and stand on it.
Rear-end collisions. Many states have rules, usually created by
judicial holding in prior cases rather than by statute, which make it
presumptively negligent for a driver to run into the rear of another
car, rebuttable if the defendant driver can come up with some other
valid explanation for the event than his own negligence. It's just
too hard and a waste of judicial resources to make the rear-end victim
prove exactly what the defendant was doing -- chewing a Burger Queen,
twiddling with the radio knobs, having his girlfriend in the right
seat twirling with _his_ knob (don't laugh, I actually prosecuted a
case like that once), or whatever -- again, since often only the
defendant knows, and he's not talking. So the mere fact that he runs
into you from the rear is sufficient to prove he was negligent, unless
he comes up with a better explanation that the jury believes.
Contractual presumptions. The law asssumes that if you signed
something, you read it, or at least that you should be held to the
same standard of knowing and agreeing to what it contains as if you
had read it. Interestingly, for some special kinds of clauses, the
law presumes that they are NOT binding, even if you DID read it,
unless they are printed conspicuously and in a certain minimum size of
type, etc., such as some indemnification agreements, disclaimers of
implied warranties on consumer products, etc. The reason for this is
to protect the perceived weaker party in such transactions and place
the burden of proof on the powerful party to show that what he did was
reasonable.
Property law presumptions. Adverse possession, for example, presumes
that property is yours rightfully if you have held it for a certain
length of time openly, notoriously (that doesn't mean or imply
anything bad, just means that the fact is widely known and "noted"),
and against the interest of the adverse claimant (ie without his
permission). This obviates the need to prove that the adverse party
really didn't want it anyway; he proved that by not caring and not
doing anything about your notorious occupancy of the property for
decades.
Constitutional presumptions. The Miranda rule, and the Gideon rule,
are examples of the court setting guidelines for the cops, which
(after the rule is in place) they are presumed to know that they
cannot cross that line without imperiling their case and getting it
thrown out, as a punishment for police misconduct, not because the
perp is proven innocent.
Criminal presumptions. Statutory rape, of course, which is what
we've been discussing in this branch of the thread. Another example
is the felony murder rule, under which a person committing any felony
can be charged with murder if someone dies in the course of commission
of that felony. It is presumed by law that the evil intent which
motivated the commission of the original crime is extended to the
intent to cause that death -- even if the person who died was the
perp's own partner in crime, or a'la Bonnie and Clyde, someone the
perp really cared about and specifically did _not_ want to die. No
matter; they're still guilty of felony murder under the transferred
intent presumption. One could argue that what the MI legislature was
trying to do, in the statute that got this thread started, was create
an analog to the felony murder rule with regard to sex crimes -- we
could call it the "felony rape rule."
Many so-called "strict liability" crimes, such as traffic violations,
pollution citations, zoning violations, etc. are in a similar vein.
The state is relieved of the burden of having to prove criminal intent
for these minor crimes where all they have to prove is that you did
the act. If you drift your car across the double yellow centerline,
and a cop catches you, it doesn't matter why you did it or whether you
intended to create a danger to others -- that fact alone is enough to
prove you guilty.
Note, it does not CONCLUSIVELY prove you are guilty, any more than
strict liability in tort means that the next time your Firestone tire
on your Ford Exploder explodes, and the SUV rolls over and its roof
collapses, crushing you and your buddies inside, that Ford and
Firestone are going to roll over themselves and just throw money at
you. You have a right to defend the double-yellow charge by arguing
that you swerved to avoid a baby that was crawling across the road in
front of you; Ford has a right to defend and to show that other
factors caused the crash, or that you were exceeding even the
foreseeable uses of the vehicle because you drunkenly ran into a
bridge abutment shortly before the tire exploded and the SUV
flipped. But, as with all presumptions, the fact that the
presumption supplies fills a gap that would otherwise exist in the
required minimum elements of proof to ALLOW YOUR CASE TO AT LEAST GET
TO THE JURY and not be dismissed before trial, on summary judgment,
for failure to prove that essential element of your case -- in the SUV
example, by proving some specific way that the vehicle and/or tire
makers were somehow negligent in their design of the product. If
the case, as it gets to the jury, is sufficiently convincing that they
WILL believe in the existence of the missing fact of which you have no
direct proof, you can still win even without direct proof of the
missing fact. That's all we're talking about.
> May be we should just make it a
> general rule of law: if you do something that "everybody knows" is
> wrong, we will punish you even though we haven't specifically made a
> law against it.
Now you know that goes beyond what I was talking about, don't you?
We were talking about bright-line tests that are known IN ADVANCE of
the perp's actions being taken, and which he therefore undertakes only
at his peril, whether or not those culpable facts in fact directly
exist in his case. Humbert Humbert could be charged with statutory
rape for having sex with Lolita even if, as in the book, she was the
sexual agressor or at least a fully willing and knowing participant.
> I would like to try substituting another test instead of the "bright
> line"(*). When certain legally-defined kinds of power imbalance
> exist, there is a _rebuttable_ presumption of undue influence and/or
> non-physical coercion. The standard for rebutting that presumption
> could slide, depending on the age of the "victim". At one end we
> would have a "victim" who is only slightly below legal age, where it
> would be sufficient for the defendant to establish reasonable
> doubt.(+) Somewhere in the middle would be a younger post-puberty
> "victim", and the defendant would have to establish by "preponderance
> of evidence" that the consent was uncoerced. At the other extreme
> would be a pre-puberty "victim", where the defendant would have to
> prove beyond a reasonable doubt that consent was uncoerced.
Well, what actually has happened in most cases is the exact
opposite. We started out with a "fuzzy" test, requiring strict proof
of every required element of a charge or claim, and when it became
apparent that many defendants who "everybody knew" were guilty were
getting off the hook, the law as a matter of social policy CREATED a
bright-line test and then forbade everyone to cross that line
regardless of what their actual intent was.
> Or maybe that's too complicated.
No, that's the way most cases of every kind develop their evidence, in
the absence of an applicable presumption. Presumptions are useful
mainly in the kind of cases where it is too difficult most of the time
to do that AND where social policy dictates that "something must be
done" about the matter even if the full formal rigid proof of each
required element of an affirmative claim was lacking, usually because
the only person who knew what _really_ happened had no motive, and no
compulsion, to reveal it.
> (*) Not so bright line -- even when the "victim" is underage, a
> prosecutor (usually) won't bother with a case when the "perpetrator"
> is fairly close in age (2-3 years). At least partly because they know
> a jury is going to be reluctant to convict somebody under those
> circumstances. Some states have enshrined that rule in their
> "statutory rape" laws, in others it's a matter of prosecutorial
> discretion.
That is in fact what MD does in statutory rape cases, by statute. I
don't remember the exact numbers for the age difference since I don't
do criminal law regularly, but if an 18- or 19-year old adult has sex
with a 17-year old minor, that is not a prosecutable crime here.
Barry Gold
>> >fill in the gap where
>> >"everybody knows" what "really" is happening, but where the frail
>> >tools of the law (evidence, proof) may otherwise be lacking, allowing
>> >some clever crooks to "slip thru the cracks" because what they did
>> >wrong was too subtle to pin down.
b...@nyx.net (Barry Gold) wrote:
>> I missed that sentence when I was commenting earlier. What a
>> dangerous concept -- that the law should somehow be able to "get"
>> people even though the evidence and proof may be lacking, because "what
>> they did wrong was too subtle to pin down".
Mike Jacobs <mjaco...@gmail.com> wrote:
>Sorry, Barry, I think we just have a misunderstanding. I'm not
>suggesting that, and while I am also not contemplating that you are
>setting this up as a "straw man" argument so you can knock it down
>easily, I think you know from our years of mutual participation in
>this NG that I am more reasonable than that.
>
>In a nutshell all I am saying is that presumptions have a useful and
>valid role in the law, and their purpose indeed is to fill in gaps in
>proof where it would otherwise be lacking, but where based on decades
>or centuries of worldy experience and common sense, we know that a
>certain combination of facts is enough to infer more likely than not
>that a certain other, needed-to-be-proven fact exists. And just to be
>extra clear, I am talking mainly about rebuttable presumptions --
Ah. There I have no problem. My problem is with absolute
presumptions. And the particular case at issue _did_ in fact involve
such an absolute presumption, namely that because the perp exchanged
drugs for sex, there was a presumption that she didn't consent (or at
least, that her consent didn't count for legal purposes).
And that's why I took such strong exception to your remark.
>> May be we should just make it a
>> general rule of law: if you do something that "everybody knows" is
>> wrong, we will punish you even though we haven't specifically made a
>> law against it.
>
>Now you know that goes beyond what I was talking about, don't you?
>We were talking about bright-line tests that are known IN ADVANCE of
>the perp's actions being taken, and which he therefore undertakes only
>at his peril, whether or not those culpable facts in fact directly
>exist in his case.
Yes, I'll admit I was taking your words literally to make a point
about parts of the law that I think are wrong, just as the appeals
court did in the case under discusion.
>Humbert Humbert could be charged with statutory
>rape for having sex with Lolita even if, as in the book, she was the
>sexual agressor or at least a fully willing and knowing participant.
I remember reading _Lolita_ once. I'm not sure how I got through it,
as it was one of the most boring books I ever read. But my memory is
not that she was a sexual aggressor, rather that she went along with
what he wanted because she didn't know (or think) that she had a
choice -- she had never been taught that she had a right to say "No".
Exactly the kind of case that I think Statutory Rape should be applied
to.
>Well, what actually has happened in most cases is the exact
>opposite [of the kind of test I suggested]. We started out with
>a "fuzzy" test, requiring strict proof
>of every required element of a charge or claim, and when it became
>apparent that many defendants who "everybody knew" were guilty were
>getting off the hook, the law as a matter of social policy CREATED a
>bright-line test and then forbade everyone to cross that line
>regardless of what their actual intent was.
And the above argument is why I suggested we should substitute a
rebuttable presumption, or at least require testimony by the alleged
victim that he/she really _was_ victimized. I would probably favor
making the standard of proof as easy as that, but I _would_ require
that the "victim" not be a willing participant.
Barry Gold
>> In that hypothetical, what if some third party offers to pay her rent
>> in return for sex (either offering her cash, or calling in a favor
>> from the landlord)?
Mike Jacobs <mjaco...@gmail.com> wrote:
>I would posit that, if the benefactor were someone she wanted to have
>sex with anyway, e.g. her chosen boyfriend, then there is no
>compulsion involved and thus no "moral" rape (as stated above I don't
>think either example rises to the level of "criminal" rape). If it's
>just the sleazy guy in the apartment next door who overhears the
>lady's plight and offers to "help her out" in exchange for sexual
>favors, I don't see that in any way morally different than if the
>landlord is the one who does it.
Does it change if the sleazy guy next door simply offers her money for
sex? Is prostitution rape? You are getting dangerously close here.
Barry Gold
>Barry Gold wrote:
>> Mike Jacobs <mjaco...@gmail.com> wrote:
>>> Bosses, for example, are not supposed
>>> to use their economic power over their secretaries to force them to
>>> have sex.
>>
>> Oddly enough, that is "legitimate" (not prosecutable) if the boss
>> coerces people of both genders for sex. But if the boss has a
>> distinct preference and only bugs members on one gender, then *that*
>> is sexual discrimination and can lead to a civil suit.
>
>Not quite. Mike's example was one of sexual harassment and not sexual
>discrimination and can happen no matter what the sex of the harasser or
>harassed is.
Yes, but the last time I looked, the legal _basis_ for sexual
harassment as a tort came from the civil rights act that prohibits
gender discrimination. So if you bug only female employees for sex,
you are discriminating against them as compared with male employees.
There was one case I read about where a boss was hitting on both
genders for sex and somebody sued. But I don't recall reading how it
came out, or even if it's finished all the appeals.
Oddly enough, offering employment, promotion, etc. for sex _could_ be
a crime: soliciting an act of prostitution. But only if actual sex
ats are required. AFAIK, in most jurisdictions it's not a crime (or
at least no "soliciting prostitution") to require your underlings to
go out on "a date" as long as sex is not a requirement. The
definition varies by state, but in CA IIRC an "act of prostitution"
would require some contact with the private parts of one person or the
other.
Mike Jacobs
> >valid role in the law, and their purpose indeed is to fill in gaps in
> >proof where it would otherwise be lacking,
> >And just to be
> >extra clear, I am talking mainly about rebuttable presumptions --
>
> Ah. There I have no problem. My problem is with absolute
> presumptions. And the particular case at issue _did_ in fact involve
> such an absolute presumption, namely that because the perp exchanged
> drugs for sex, there was a presumption that she didn't consent (or at
> least, that her consent didn't count for legal purposes).
Maybe other NG readers, especially the MI lawyers, can pitch in here
with their thoughts, but IIRC even the actual case that started this
thread did not involve an absolute presumption, except that the court,
in footnote 8, threw rocks at the legislature for creating a poorly
drafted law that might be construed, by an absolutist court, as having
"zero tolerance" in that area. IMO that doesn't meant that is how
they are _really_ going to interpret the statute.
Even if the statute makes it a black-and-white, clear-cut line, there
is still discretion in enforcement since the prosecutor does not
_have_to_charge a felony perp with rape _every_ time he has sex while
committing the other felony. It's just there, as an option that may
or may not be used in an appropriate case.
I think we're on the same page here, just that semantics are getting
in the way. I do agree that so called "zero tolerance" policies,
whether set by statute, judicial rule or administrative fiat, are a
poor response to often complex problems and as a result often do more
harm than good since they make no allowance whatsoever for flexibility
in enforcement where that would cause injustice. Suspending a child
with a headache who brings an aspirin to school, on the same basis as
if he were a drug pusher, makes no sense and should not be policy.
The only reason IMO it _is_ policy in many districts is that it
relieves the principal of having to make the hard decisions, and
having to then explain those decisions to the parents of the affected
kids.
WRT the MI law, the more I think about it the more it seems like the
legislature was trying to create a parallel to the felony murder
rule. Do you have any problem with that rule, or the way it is
usually enforced? Any death that occurs in the course of commission
of a felony can be prosecuted as murder against the accused felon,
regardless of whether they intended the death.
Seth Breidbart
Mike Jacobs <mjaco...@gmail.com> wrote:
>On Feb 2, 6:46 am, s...@panix.com (Seth Breidbart) wrote:
>> In article <ku54s2l92ghnoejql1q3lh4lcibdass...@4ax.com>,
>
>> Given the prevalence of "all sex is rape" among feminists, that
>> certainly isn't the first group whose opinions I'd consider.
>
>Got you thinking, though, didn't it? I'm not agreeing that "all sex
>is rape" either, but I do think it not beyond the bounds of reason to
>say "all forced sex is rape" regardless of the means used to coerce
>the unwilling participant.
Sure; but the issue may come down to "what is 'force'"?
Is it force if a guy tells his girlfriend "Have sex with me tonight or
I won't have dinner with your mother tomorrow"?
>IIRC the feminist syllogism you cite -- which NOT all feminists agree
>with -- goes something like this.
>
>primary premise -- all forced sex is rape.
>secondary premise -- sex between people who are not co-equal in power,
>compelled by any factor whatsoever, be it economic, psychological,
>physical -- is forced sex.
>intermediate conclusion -- all sex between people who are not co-equal
>is rape.
Consider the situation in a dating bar. Beautiful woman is surrounded
by men trying to light her cigarette (in some states), buy her drinks,
etc.; anything to get her attention. It's quite clear where the power
lies in that situation.
>tertiary premise -- male-female relationships (in present day
>paternalistic society) are not co-equal and will not be until women
>are treated as equals in every way with men.
>final conclusion -- all sex between men and women is rape.
>
>I do not personally agree with that logic, or with the conclusion.
I don't think anybody would, since it leads to (in my hypothetical)
the woman raping the lucky guy she chooses.
Seth
David Chesler
> WRT the MI law, the more I think about it the more it seems like the
> legislature was trying to create a parallel to the felony murder
> rule. Do you have any problem with that rule, or the way it is
> usually enforced? Any death that occurs in the course of commission
> of a felony can be prosecuted as murder against the accused felon,
> regardless of whether they intended the death.
That's because there is no consensual homicide,
and the felony-murder rule just increases the
penalty.
Is the felony-murder rule in full force, or
are there conditions like some likelihood that
the illegal activity would lead to the death?
The parallel doesn't work because there is legal
consensual sex.
--
- David Chesler <che...@post.harvard.edu>
Free Cory Maye
Dick Adams
> Mike Jacobs wrote:
>> WRT the MI law, the more I think about it the more it seems like the
>> legislature was trying to create a parallel to the felony murder
>> rule. Do you have any problem with that rule, or the way it is
>> usually enforced? Any death that occurs in the course of commission
>> of a felony can be prosecuted as murder against the accused felon,
>> regardless of whether they intended the death.
> That's because there is no consensual homicide, and the felony-murder
> rule just increases the penalty.
> ...
> The parallel doesn't work because there is legal consensual sex.
If we are still disscusing the case in point, I will repeat myself.
A woman pleading with a burglar not to take her wedding ring agrees
to his request for sex in lieu of the wedding ring. Forgive my
ignorance if that is not the felony-rape parallel of felony murder.
Mike
>
> WRT the MI law, the more I think about it the more it seems like the
> legislature was trying to create a parallel to the felony murder
> rule. Do you have any problem with that rule, or the way it is
> usually enforced? Any death that occurs in the course of commission
> of a felony can be prosecuted as murder against the accused felon,
> regardless of whether they intended the death.
I'd agree that they seemed to have been trying to make the law much like
the felony-murder law but don't agree that felony-murder should be as
black-and-white as it is written, either (as I understand the law to be
written.)
Let's say I hold up a bank. Someone in that bank decides to kill someone
else during the robbery. *I* could be charged with murder when it had
nothing to so with my holding up the bank but simply happened during it.
Now if the death was a proximate effect of my felony, I can see it (such
as if I set a building on fire and people are killed due to that fire
but not if I set a building on fire and someone happens to decide "hey,
this is the great time to commit suicide" and jumps out the window when
the fire is still localized to the trashcan in the lobby 10 stories below.)
Mike Jacobs
> >certain combination of facts is enough to infer more likely than not
> >that a certain other, needed-to-be-proven fact exists. And just to be
> >extra clear, I am talking mainly about rebuttable presumptions --
>
> Ah. There I have no problem. My problem is with absolute
> presumptions. And the particular case at issue _did_ in fact involve
> such an absolute presumption, namely that because the perp exchanged
> drugs for sex, there was a presumption that she didn't consent (or at
> least, that her consent didn't count for legal purposes).
Upon further reflection, maybe we _are_ talking about 2 different
things. There is, on the one hand, the concept of evidentiary
presumptions, generally rebuttable, which have the net effect of
shifting the burden of proof onto the party disfavored by the
presumption. And OTOH there are SUBSTANTIVE rules of law that rely
on bright-line tests. IMO the misunderstanding we are having arises
because you object to certain acts being statutorily criminalized by a
bright-line test, but are looking at it more as a matter of what
evidence is presumed irrelevant to a defense rather than focusing on
the nature and elements of the act charged -- the substantive law --
which is what makes certain facts relevant or not in the first place.
Consent is irrelevant to the sex acts under discussion simply because
lack of consent is not a substantive element of the charged offense.
IMO, evidentiary presumptions are not only common, they are part and
parcel of virtually every actual dispute, since for each disputed
issue, one party or the other has to persuade the factfinder and
therefore win (unlike in mediation, there is no "middle ground" in
litigation) by the required standard of proof (beyond reasonable
doubt, clear and convincing, or a mere preponderance). There is one
party or the other whom the law considers to win by default if the
other party fails in its burden of evidentiary proof. That's why
those accused of criminal acts are presumed innocent until proven
guilty BARD, why libel suits against media by a public figure are
nonstarters unless the celebrity can prove malice by clear and
convincing evidence, and why the verdict in a "he said, she said"
civil dispute invariably is handed to the defendant if the factfinder
has no way to break a 50-50 tie and be persuaded by a preponderance
(51% or more). Beyond that, everyone is presumed to know the law;
one is presumed to intend a result if one knows or should know with
reasonable certainty that it will occur; and so on. Grounded party
in human psychology, partly in logic, and mostly in social policy
based on what worked in previous cases (stare decisis), such rules are
the meat and potatoes of law.
OTOH we have the 2 kinds of sex offenses at issue in this thread: the
original case, involving a statute creating something analogous to a
felony murder rule when a sex act occurs during the commision of
another felony -- let's call that the "felony rape rule"; and, as
Barry has brought up in the latter part of this thread, statutory rape
(presumed lack of consent) where the "victim" (his quotes, not mine)
is a child of tender years (the exact "age of consent" to
participating in sex varying as it does from state to state and also
in relation to the age of the other participant, the potential
defendant). In both of these examples, we are dealing with a rule of
SUBSTANTIVE law more than a mere evidentiary presumption. The reason
why consent of the underage participant is not a defense to the crime
of statutory rape is that LACK of consent is not a substantive element
of the crime charged and thus is irrelevant to the state's proving
whether the defendant knowingly and willingly committed the prohibited
act, i.e. having sex with a minor.
As with evidentiary presumptions, this is also an area where social
policy is largely in play, but it is a different animal. The debates
and choices over whether prohibiting a certain act were a good idea or
not took place, or should have taken place, in the legislature BEFORE
a statute was passed. One can imagine, for instance, such a debate
occurring over whether the rules of the road should require that all
drivers keep to the right of the roadway, or to the left. The choice
may be completely arbitrary; but once it is made, violation of the
rule is a crime. Likewise with a statute such as the ones
criminalizing statutory rape (note well the "statutory" part, since if
all we were talking about was COMMON LAW rape involving an alleged
victim who happened to be a minor, then lack of consent WOULD be a
defense. The legislature, perhaps not liking the precarious position
in which such iffy prosecutions left their (and their constituents',
since getting re-elected is every legislator's first priority) young
daughters, made it a hard-line rule: no sex with minors below a
certain age, period. Once they made that rule, that was the law, and
as anyone who has ever referred to sexually precocious children as
"jail bait" (i.e. virtually every potential statutory rapist) knows,
this IS a bright-line test, which one crosses only at one's extreme
peril.
Now, one may possibly argue -- as you apparently do below -- that in
some cases, sex with a minor may not be immoral, and should not be
criminalized, so that therefore the defendant should be allowed to
raise all the same defenses -- including that of the victim's consent
to the act -- which are allowed at common law rape prosecutions. But
those are arguments that are properly directed to the legislature,
either when they are contemplating passage of such a statute or in an
effort to repeal an undesirable statute -- rather than to the
prosecution of individual cases.
> And the above argument is why I suggested we should substitute a
> rebuttable presumption, or at least require testimony by the alleged
> victim that he/she really _was_ victimized. I would probably favor
> making the standard of proof as easy as that, but I _would_ require
> that the "victim" not be a willing participant.
Although it is tempting to make a straw man out of this argument,
seeing it as simply an apologia for pedophiles who want a legitimate
exception to the law so they can engage in child sex with willing
participants, in all kindness I will not attribute that motivation to
you. I understand that where you are coming from is a strongly
libertarian philosophy that holds the best government to be the least
government consistent with its primary purpose of protecting public
safety, and that the law should simply keep its nose out of the "vice"
field, de-criminalizing all kinds of "victimless" crimes such as
drugs, consensual sex acts, gambling, etc. as well as get out of the
business of regulating things like racial and other discrimination in
housing and employment, consumer product safety, public health matters
such as alcohol, tobacco, transfats, and vehicular emissions,
protection of endangered species and ecosystems against development,
regulation of markets with protective tarriffs and subsidies as well
as disclosure rules and anti-fraud and antitrust laws, and virtually
everything else government does except the police and the military.
But the plain fact is, all these other areas of law grew over decades
because one or the other person's ox was being gored with no apparent
legal recourse, the people concerned lobbied the lawmakers to "do
something about it", and they did, so it is now the law. And the
real "victim" which ALL criminal laws seek to protect is SOCIETY as a
whole, not the individual complainants, who indeed also have all their
civil remedies available against the perp to get _personal_ rights
vindicated.
Taking just statutory rape as an example, society feels that ON
BALANCE, so much bad stuff is associated with child sex that it should
just be prohibited outright, rather than diddling around with consent
issues, whether the indivudal child at issue was really "harmed" or
not, and so on. This is basically the same reasoning that led to
criminzlization of other so-called "victimless" crimes like drugs,
prostitution, and gambling. You can argue that criminalizing such
acts creates more problems than it solves; some of us here may agree
with you on one or the other of these areas. But the legislature
clearly DOES have Constitutional power to criminalize such acts with
bright-line tests if they bear _some_ rational relation to a
legitimate government goal, in which the only intent that need be
shown is the intent to do the act, not the intent to cause any harm or
even to show that actual harm did occur from the particular act.
And, I simply cannot see the "unfairness" you allege in such a
situation, since the statutory bright-line rule IS known in advance
and, being a bright-line test, it's not as though it creates a "trap
for hte unwary" or something which a person may wander across
inadvertently.
Some laws incorporate a substantive bright-line test, like "don't
cross the double yellow line" or "don't have sex with minors".
Others don't. If you want to eliminate the bright-line rules created
by statutory law, complain to your legislature. All the cops and
courts are doing is enforcing the law as written.
David Chesler
> David Chesler <che...@post.harvard.edu> wrote:
>> That's because there is no consensual homicide, and the felony-murder
>> rule just increases the penalty.
>> ...
>> The parallel doesn't work because there is legal consensual sex.
>
> If we are still disscusing the case in point, I will repeat myself.
> A woman pleading with a burglar not to take her wedding ring agrees
> to his request for sex in lieu of the wedding ring. Forgive my
> ignorance if that is not the felony-rape parallel of felony murder.
I'm not sure what it is, and there was the case
[SPOILER ALERT FOR THE FIRST SEASON OF 24]
in the first season of 24 that raises similar issues.
Commenters called what happened rape, and I wasn't
sure that that was accurate either.
But if I read the court's analysis of what the legislators
enacted correctly, if two people conspire to kill a bald
eagle (least immoral commitable felony example from
James Michener's "The Drifters") and then have sex
while they are talking about how they are going to
kill this bald eagle, that would be 1st degree sexual
misconduct ("rape") under that Michigan law.
While coercing sex through illegal acts directed
against the other party other than force or threat
of force is awfully tantamount to rape, not every
sex that occurs in the commision of a felony is rape.
(I don't have a problem with it being felony-murder
if your fellow robber is killed by the bank guard.)
Stuart A. Bronstein
> I'd agree that they seemed to have been trying to make the law
> much like the felony-murder law but don't agree that felony-murder
> should be as black-and-white as it is written, either (as I
> understand the law to be written.)
>
> Let's say I hold up a bank. Someone in that bank decides to kill
> someone else during the robbery. *I* could be charged with murder
> when it had nothing to so with my holding up the bank but simply
> happened during it.
I've seen cases where someone will rob a bank and and old guy will
get overexcited and die of a heart attack. That was ruled felony
murder - when you commit a felony, particularly a violent felony, you
take the risk that someone will die, and that you will be held
responsible.
> Now if the death was a proximate effect of my felony, I can see it
> (such as if I set a building on fire and people are killed due to
> that fire but not if I set a building on fire and someone happens
> to decide "hey, this is the great time to commit suicide" and
> jumps out the window when the fire is still localized to the
> trashcan in the lobby 10 stories below.)
In your example unless the killing is completely unrelated to your
robbery, you are a cause of the killing. If someone shoots at you,
misses and hits someone else, you are the cause, for example.
But if some guy is in the bank and decides to take that opportunity
to kill his wife in the confusion, the killing is probably unrelated
to the robbery and so I doubt it would be felony murder.
Stu
Barry Gold
>> And the above argument is why I suggested we should substitute a
>> rebuttable presumption, or at least require testimony by the alleged
>> victim that he/she really _was_ victimized. I would probably favor
>> making the standard of proof as easy as that, but I _would_ require
>> that the "victim" not be a willing participant.
Mike Jacobs <mjaco...@gmail.com> wrote:
>Although it is tempting to make a straw man out of this argument,
>seeing it as simply an apologia for pedophiles who want a legitimate
>exception to the law so they can engage in child sex with willing
>participants, in all kindness I will not attribute that motivation to
>you.
Thank you. At 60 I have reached the point where even 20 year olds
look "too young" to be interesting. I think my minimum age of
interest is somewhere around 25 or 30. All academic, of course,
because I am monogamously married.
>I understand that where you are coming from is a strongly
>libertarian philosophy that holds the best government to be the least
>government consistent with its primary purpose of protecting public
>safety, and that the law should simply keep its nose out of the "vice"
>field, de-criminalizing all kinds of "victimless" crimes such as
>drugs, consensual sex acts, gambling, etc. as well as get out of the
>business of regulating things like racial and other discrimination in
>housing and employment, consumer product safety, public health matters
>such as alcohol, tobacco, transfats, and vehicular emissions,
>protection of endangered species and ecosystems against development,
>regulation of markets with protective tarriffs and subsidies as well
>as disclosure rules and anti-fraud and antitrust laws, and virtually
>everything else government does except the police and the military.
Umm, very few libertarians would agree with getting rid of anti-fraud
laws. Lying about a material matter in a business transaction is
fraud, which is a type of coercion. The only exception that comes to
mind is the writing of LeFevre, who seems to take the view that you
should rely entirely on passive defenses against coercion (walls,
etc.) and that neither defensive violence nor a system of restitution
for past coercion is proper.
That's a fairly good summary of the classic libertarian view. But
it's one I no longer hold, and I think most modern (small l)
libertarians have modified it in some way.
To be specific:
. victimless "crimes" should be decriminalized. People should be
free to possess, use, sell, give, etc. drugs, as long as there is
no fraud. ("Here, try just one line of cocaine, it's good for
you." would be fraud; any reasonable person knows that coke is
addictive and does bad things to the body.")
. protective tariffs and subsidies should be done away with.
. arbitrary rules about who can do what should be done away with.
. anti-discrimination laws are not only a violation of people's
fundamental right to deal with whom they choose, and vice versa,
they are also an example of the kind of law concerning which I
said "laws that are not or cannot be enforced should be repealed."
Yes, I know the government puts a fair amount of effort into
enforcing anti-discrimination laws. They only catch the stupid.
A smart landlord will show the apartment to anyone who shows up
and meets the credit checks, then wait until he has multiple
offers and choose the applicant whose race/sex/whatever he
prefers. Similarly for employment, etc.
. Most anti-pollution rules should be handled civilly. You have no
right to throw your garbage onto somebody else's property, and
that applies just as much to gases and airborne particulates as
it does to more massive forms of garbage.
Following basic economics, if it's more efficient for the
polluter to pay everybody else for the side-effects of his
pollution than to clean it up at the source, then that's what
should happen. (That is, if the increased profits from polluting
vs. cleanup are greater than the cost of paying off the injured
-- including people who need to spend extra money/time cleaning
their windows and buildings -- then that's the "right" thing to
do. In practice, I don't think that would ever happen.
Centralizing cleanup is going to be cheaper.
>Taking just statutory rape as an example, society feels that ON
>BALANCE, so much bad stuff is associated with child sex that it should
>just be prohibited outright, rather than diddling around with consent
>issues, whether the indivudal child at issue was really "harmed" or
>not, and so on.
This is a basic problem with almost all kinds of regulation. If I
make a law that says to a landlord, "you may not charge more than $X
for this apartment," I am also saying to all prospective tenants, "you
may not _pay_ more than $X for that apartment."
And if I make it illegal to engage in sex with an underage person, I
also in effect make it illegal for the underage person to engage in
sex. The minor will not be prosecuted, but if the law is enforced the
minor will have a very difficult time finding sex partners. This is
particularly offensive in states like California that have set the
"age of consent" at 18, when people are now going through puberty as
early as 8 or 9. That's a long time for somebody whose body thinks it
is ready for sex to go without. [And of course, they don't. They
find partners, usually close to their own age, sometimes not. And if
their parents find out, sometimes the partner ends up doing serious
jail time.] Again, I point out that where there is a serious power
imbalance and the weaker party feels "taken advantage of", there
should be consequences for the stronger party. But as a libertarian I
want to carve out an exception to handle the several well-publicized
cases where that rule does not apply.
Mike
> I've seen cases where someone will rob a bank and and old guy will
> get overexcited and die of a heart attack. That was ruled felony
> murder - when you commit a felony, particularly a violent felony, you
> take the risk that someone will die, and that you will be held
> responsible.
In this case, I can agree with the charge since the robber caused the
elderly man to become excited and may have triggered the heart attack
and that's the risk you take when committing a crime.
> In your example unless the killing is completely unrelated to your
> robbery, you are a cause of the killing. If someone shoots at you,
> misses and hits someone else, you are the cause, for example.
>
> But if some guy is in the bank and decides to take that opportunity
> to kill his wife in the confusion, the killing is probably unrelated
> to the robbery and so I doubt it would be felony murder.
In this case, that's basically what I was saying; that it shouldn't be
felony-murder. But, as I understand the wording of the law, it can be
charged as such (and I may have that wrong) and that's what I have a
problem with. Saying that "yeah, it could be charged that way but
rarely/never is" isn't the same as "no, the law actually reads where
that can't happen" and people do sometimes fall into that "rarely" section.
Much like a law that charges someone with a crime for adultery or gay
sex that hasn't been enforced for several years could still be enforced
by a DA with a grudge, etc.
Dick Adams
> Dick Adams wrote:
>> David Chesler <che...@post.harvard.edu> wrote:
>>> That's because there is no consensual homicide, and the felony-murder
>>> rule just increases the penalty.
>>> ...
>>> The parallel doesn't work because there is legal consensual sex.
>> If we are still disscusing the case in point, I will repeat myself.
>> A woman pleading with a burglar not to take her wedding ring agrees
>> to his request for sex in lieu of the wedding ring. Forgive my
>> ignorance if that is not the felony-rape parallel of felony murder.
> I'm not sure what it is, and there was the case
> [SPOILER ALERT FOR THE FIRST SEASON OF 24]
> in the first season of 24 that raises similar issues.
> Commenters called what happened rape, and I wasn't
> sure that that was accurate either.
Do you have a cite for this?
> But if I read the court's analysis of what the legislators
> enacted correctly, if two people conspire to kill a bald
> eagle (least immoral commitable felony example from
> James Michener's "The Drifters") and then have sex
> while they are talking about how they are going to
> kill this bald eagle, that would be 1st degree sexual
> misconduct ("rape") under that Michigan law.
Sounds to me like hyperbole.
> While coercing sex through illegal acts directed
> against the other party other than force or threat
> of force is awfully tantamount to rape,
If you'll have sex with me, I will not commit a non-violent
criminal act to your detriment is NOT "awfully tantamount
to rape", it is rape.
Examples: If you will have sex with me, I will not
- take your 5 year old child as a hostage when I leave;
- steal your car;
- leave you here in the middle of the swamp; etc.; etc.
> not every sex that occurs in the commision of a felony
> is rape.
Of course not! In the end, it comes down to a matter of
facts and circumstances.
> (I don't have a problem with it being felony-murder
> if your fellow robber is killed by the bank guard.)
Sounds to me like justifable homicide - not murder.
David Chesler
> David Chesler <ches...@post.harvard.edu> wrote:
> > [SPOILER ALERT FOR THE FIRST SEASON OF 24]
> > in the first season of 24 that raises similar issues.
> > Commenters called what happened rape, and I wasn't
> > sure that that was accurate either.
>
> Do you have a cite for this?
For instance http://24.neoseeker.com/24_season_six/Movie/pages/
kim_bauer/
The boys take Kim to a compound built by their employer,
Ira Gaines. Kim is then joined by her mother. Ira Gaines is
using the Jack's family to force him to do his dirty work.
Kim
and Teri are almost murdered execution style at the
compound,
but Ira changes his mind. While at the compound, a guard is
about to rape Kim. Teri protects Kim by offering herself.
http://www.tv.com/24/800-a.m.-900-a.m./episode/85404/summary.html
Continuity Error: When Kim sits and waits while Teri is
being
raped, her shoes change from the ones she's been wearing
the past 8 episodes. When Teri returns after the rape and
commercial break, there's a clear shot showing that she's
back in the sandals she's been wearing for the whole series
up until now
(No citation, save my last post, that I disagree.)
> > But if I read the court's analysis of what the legislators
> > enacted correctly, if two people conspire to kill a bald
> > eagle (least immoral commitable felony example from
> > James Michener's "The Drifters") and then have sex
> > while they are talking about how they are going to
> > kill this bald eagle, that would be 1st degree sexual
> > misconduct ("rape") under that Michigan law.
>
> Sounds to me like hyperbole.
Which sounds like hyperbole?
We'd think the prosecutor wouldn't charge, but there is
a case in Florida where two teenagers took a picture
of themselves lawfully having sex, and were charged
with kiddie porn, because somebody _might_ have
seen the picture, and "if these pictures are ultimately
released, future damage may be done to these minors'
careers or personal lives." Randy Balko at
TheAgitator asks "what effect, I wonder, does Judge Wolf
think a child pornography conviction will have on "these
minors' careers or personal lives?"
Again refer to the final footnoote of the opinion at
http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20061107_C270229_28_270229.OPN.PDF
"We cannot help but question whether the
Legislature actually intended the result we
reach here today ... We believe that the
Legislature in drafting ยง 520b(1)(c), may
have conceived of scenarios in which there
there was a violent felony involving an
unwilling victim..."
> > While coercing sex through illegal acts directed
> > against the other party other than force or threat
> > of force is awfully tantamount to rape,
>
> If you'll have sex with me, I will not commit a non-violent
> criminal act to your detriment is NOT "awfully tantamount
> to rape", it is rape.
"If you have sex with me, I will not libel you by writing
your name in the bathroom" -- does that justify killing
the threatener since it is rape?
"If you have sex with me, I will pay you the $20 your
requested for having sex with me" -- is that rape? It
is an illegal act and is very close to what this guy
was convicted of, except that he was offering drugs
instead of money.
By analogy, note that larceny by deception is not the
same as larceny by force.
Others in this thread listed various other times when
an individual might consent to having sex that she
does not desire per se.
Most of these are not things a gentleman would
do (not sure how ungentlemanly it is to engage in
grudgefucks and other things that might happen
in a long-term relatonship when the sex drives of
the members are temporarily not in sync. ("Have
sex with me or I won't go off to work with a smile
on my face and the kind of warm thoughts that
will have me coming home with a bouquet of
flowers and reservations to your favorite restaurant.")
> > not every sex that occurs in the commision of a felony
> > is rape.
>
> Of course not! In the end, it comes down to a matter of
> facts and circumstances.
That's the point.
> > (I don't have a problem with it being felony-murder
> > if your fellow robber is killed by the bank guard.)
>
> Sounds to me like justifable homicide - not murder.
But that's not the way it works. You can be prosecuted
for the death of your accomplice.
(Would it also be justifiable homicide if while your
accomplice is putting on his mask and walking
into the bank, you shoot him in the back? He is
no less a scumbag for having committed one
less part of one more robbery.)
Seth Breidbart
Stuart A. Bronstein <spam...@lexregia.com> wrote:
[Felony murder due to bank robbery]
>But if some guy is in the bank and decides to take that opportunity
>to kill his wife in the confusion, the killing is probably unrelated
>to the robbery and so I doubt it would be felony murder.
I can see that as related to the robbery (without the robbery, the guy
wouldn't have shot his wife, at least not then).
What about the case that while you're robbing the branch in the lobby,
a secretary on the 15th floor finally has too much of her boss's
harassment and shoots him? That seems like a better example of an
unrelated death that takes place during the robbery.
Seth
Stuart A. Bronstein
Right. With respect to the bank guard. But if there was a second
robber, it could well be felony murder with respect to him.
Stu
Dick Adams
So might argue an excessively agressive prosecutor, but is
there any other kind?
Since adultery is a felony in Michigan, husband walks in and
finds wife have sex with paramour. He killss paramour in the
belief his wife is being raped. Wife claims dead man was her
lover in the hope of having her husband convicted of murder.
By the logic above, is she guilty under the felony-murder
statute?
Dick
Mike
> On Feb 11, 7:48 am, rdad...@smart.net (Dick Adams) wrote:
>> David Chesler <ches...@post.harvard.edu> wrote:
>>> [SPOILER ALERT FOR THE FIRST SEASON OF 24]
>>> in the first season of 24 that raises similar issues.
>>> Commenters called what happened rape, and I wasn't
>>> sure that that was accurate either.
>> Do you have a cite for this?
>
> For instance http://24.neoseeker.com/24_season_six/Movie/pages/
> kim_bauer/
>
> The boys take Kim to a compound built by their employer,
> Ira Gaines. Kim is then joined by her mother. Ira Gaines is
> using the Jack's family to force him to do his dirty work.
> Kim
> and Teri are almost murdered execution style at the
> compound,
> but Ira changes his mind. While at the compound, a guard is
> about to rape Kim. Teri protects Kim by offering herself.
I never watched the show but would tend to agree, based on the above,
that it wasn't quite rape as such. The guard was about to rape one
woman. A DIFFERENT woman says "no, I'll have sex with you." I.e. she did
it voluntarily as such. Now if the guard had said "have sex with me
peacefully or I'll forcefully rape the other woman" (or "...I'll commit
some other crime") then it would have been a different matter. Now I
would agree with the guard being charged with some sort of assault since
he made the threat of a rape but he didn't make the threat directly to
Teri or force her in a "do X or I'll do Y" type decision. She did that
on her own.
Now I'd think the guy is getting off light if he did get charged with
only a sexual assault charge and maybe the law should be changed in this
regard but in the above I'm trying to look at it from a legal and
logical viewpoint and not just a moral or emotional one.
Mike
Well, that may be said not to be incidental to the robbery. But if the
secretary shot her boss just as you're setting fire to the building, it
might be argued that it took place during the arson (since arson applied
to the whole building and not just the lobby area.)
Or how about if you're embezzling money and the secretary shoots the
boos in a fit of rage at the same time and in the same room that you're
working the computer to transfer the funds to the bank in Switzerland
and they even knew that you had been embezzling the money but the fit of
rage has nothing at all to do with it and they didn't know specifically
what you were doing at that time?
Mike
> Since adultery is a felony in Michigan, husband walks in and
> finds wife have sex with paramour. He killss paramour in the
> belief his wife is being raped. Wife claims dead man was her
> lover in the hope of having her husband convicted of murder.
> By the logic above, is she guilty under the felony-murder
> statute?
Or maybe she really IS being raped but also has an issue with her
husband and thinks "hey, this is a great time to get rid of him by
claiming he shot my lover" not realizing she's possibly shooting herself
in the foot in the process. Things like this could get strange really
fast :)
Stuart A. Bronstein
In general whether or not someone commits a felony is a matter of
intent. So if he actually and reasonably believed his wife was being
attacked (even if he was wrong), and killing the attacker was the
least damaging thing he could do to stop the attack, it would
probably not be murder of any kind.
I imagine that if someone commits adultery and one of them dies of a
heart attack in the act, I suppose that could be felony murder under
the court's reading of the Michigan statute.
Stu
Barry Gold
>Since adultery is a felony in Michigan, husband walks in and
>finds wife have sex with paramour. He killss paramour in the
>belief his wife is being raped. Wife claims dead man was her
>lover in the hope of having her husband convicted of murder.
>By the logic above, is she guilty under the felony-murder
>statute?
Depends on the felony-murder statute. The particular statute the
court was calling attention to made sex in conjunction with _any_
other felony into "rape".
In California at least, a death that occurs during the commission of
another crime qualifies for felony murder *only* if the other crime is
one of those listed in the statute:
. arson
. rape (and certain other non-consensual sexual acts)
. carjacking
. robbery
. burglary
. mayhem
. kidnapping
. train wrecking
. torture
That's for first degree murder. For second degree murder, CA courts
have held that felony murder can be applied only if the felony is
"inherently dangerous to human life".
Stuart A. Bronstein
> David Chesler wrote:
>>
>> For instance http://24.neoseeker.com/24_season_six/Movie/pages/
>> kim_bauer/
>>
>> The boys take Kim to a compound built by their
>> employer, Ira Gaines. Kim is then joined by her mother.
>> Ira Gaines is using the Jack's family to force him to
>> do his dirty work. Kim and Teri are almost murdered
>> execution style at the compound, but Ira changes his
>> mind. While at the compound, a guard is about to rape Kim.
>> Teri protects Kim by offering herself.
>
> I never watched the show but would tend to agree, based on the
> above, that it wasn't quite rape as such. The guard was about to
> rape one woman. A DIFFERENT woman says "no, I'll have sex with
> you." I.e. she did it voluntarily as such. Now if the guard had
> said "have sex with me peacefully or I'll forcefully rape the
> other woman" (or "...I'll commit some other crime") then it would
> have been a different matter.
If there was any kind of compulsion, even if not directly related to
that specific sex act, it's not voluntary. If it's not voluntary,
it's rape. This has nothing to do with the Michigan statute.
> Now I'd think the guy is getting off light if he did get charged
> with only a sexual assault charge and maybe the law should be
> changed in this regard but in the above I'm trying to look at it
> from a legal and logical viewpoint and not just a moral or
> emotional one.
You're looking at it from a highly mechanistic point of view, not a
legal one.
Stu
David Chesler
wrote:
> If there was any kind of compulsion, even if not directly related to
> that specific sex act, it's not voluntary. If it's not voluntary,
> it's rape.
Setting aside all the perfectly legal scenarios where a party
consents
to sex (note that word, consent) for reasons other than the sex
itself,
suppose the compulsion is of the "Trick or Treat" variety -- someone
comes to the victims door and says "Give me candy or I will throw
an egg at your house" or simply "I am engaging in mischief and
I am about to throw an egg at your house". (Assume this
malfeasor is of a legal age.)
The resident comes out and says "I can't stop you from egging my
house, but wouldn't you rather come in and have sex with me?"
Is that sufficient compulsion?
--
- David Chesler <che...@post.harvard.edu>
"Oh bother, my husband is coming home and he's carrying a
big bouquet of flowers. That means he's going to expect me
to spend the entire weekend with my legs in the air."
"What's the matter? Don't you have a vase?"
Stuart A. Bronstein
> Setting aside all the perfectly legal scenarios where a party
> consents to sex (note that word, consent) for reasons other than the
> sex itself, suppose the compulsion is of the "Trick or Treat" variety
> -- someone comes to the victims door and says "Give me candy or I
> will throw an egg at your house" or simply "I am engaging in mischief
> and I am about to throw an egg at your house". (Assume this
> malfeasor is of a legal age.) The resident comes out and says "I
> can't stop you from egging my house, but wouldn't you rather come in
> and have sex with me?" Is that sufficient compulsion?
Since the compulsion is fairly minor and the suggestion was hers, I'd
guess probably not.
Unless it amounts to adultery in Michigan, in which case they could
both get life. ;-)
Stu
Meano...@yahoo.com
> Since adultery is a felony in Michigan, husband
> He kills paramour in the belief his wife is being
> raped. Wife claims dead man was her lover in the
> hope of having her husband convicted of murder.
> By the logic above, is she guilty under the felony-
> murder statute?
Felony murder statutes simply allow the prosecution to satisfy the
intent element of a homicide charge. For instance:
Doug beats up Victor hoping to subdue him and take his wallet. Victor
dies. Doug is charged with murder. To convict, the prosecution must
prove beyond reasonable doubt that Doug intended to murder Victor. A
felony murder statute allows the prosecution to prove instead that
Doug intended to commit some other crime (say robbery or aggravated
assault). In most if not all felony murder statutes, the specific
offenses from which intent can be substituted are listed and they are
usually offenses that inherently carry some risk of death.
In Dick's hypothetical, wife commits a felony (adultery) during which
her accomplice is killed by a third party. Her later statement to the
police is irrelevant. If (1) adultery were on the list of crimes
triggering felony murder treatment and (2) Michigan allowed felony
murder for accomplices killed by third parties, then the intent
element of a murder charge against wife could be made out.
If the above paragraph seems absurd, and as we analogize "felony CSC
1" to felony murder, note that one of the criticisms by the Waltonen
court was that the list of crimes triggering such treatment is "any
felony". Also, as we get further and further away from Waltonen, a
number of posts in this thread have conflated two issues: felony-
murder and accomplice liability.
The easy case (straight common-law felony murder):
This is the Doug/Victor hypothetical above.
The slightly harder case (accomplice liability):
Doug and Albert walk into a bank, guns drawn, and announce a stickup.
Albert laughs maniacally and shoots bank guard dead. Doug gets rung up
for murder even if he never intended for anyone to get hurt.
The even harder case (modern felony murder)
Doug and Albert walk into a bank, guns drawn, and announce a stickup.
Police officer responds to silent alarm and mistakenly shoots bank
guard dead. In a "proximate cause" theory jurisdiction, Doug gets rung
up for felony murder even if he never intended for anyone to get hurt.
In an "agency" jurisdiction, no felony murder on these facts.
The rather hard case (felony murder of an accomplice):
Doug and Albert walk into a bank, guns drawn, and announce a stickup.
Bank guard shoots Albert dead. Doug gets rung up for the felony murder
of...his accomplice Albert. This is a minority - maybe even a purely
theoretical - position.
--
I am not your lawyer. This is not legal advice.
(Sorry to re-open the thread. Original submission last week was
neither posted nor returned as rejected.)
Stuart A. Bronstein
> The rather hard case (felony murder of an accomplice):
> Doug and Albert walk into a bank, guns drawn, and announce a
> stickup. Bank guard shoots Albert dead. Doug gets rung up for the
> felony murder of...his accomplice Albert. This is a minority -
> maybe even a purely theoretical - position.
I seem to remember seeing exactly this scenario carried out in
California.
Stu