Category Archives: Uncategorized

The Natural, Yet Ridiculous, Next Step In Affirmative Consent

A pervasive problem in discussions about rape and sexual assault is that the words are thrown about with reckless abandon.  When words are untethered to definitions, it’s impossible to know whether it’s a forcible gang rape or an undesirable guy on the street saying “hi.”  The flavor du jour is affirmative consent.

Aha! Finally, a word with a deeply rooted definition in law: Consent.  Consent is knowing, voluntary and intelligent agreement. A bill has been introduced in the New Jersey legislature to put this to the test:

Earlier this month, state Assemblyman Troy Singleton (D-Burlington) introduced the bill (A3908), which would create the crime of “sexual assault by fraud,” which it defines as “an act of sexual penetration to which a person has given consent because the actor has misrepresented the purpose of the act or has represented he is someone he is not.”

The impetus was a woman, Mischele Lewis, who was scammed by a guy, to the tune of $5 grand. Not nice at all, but problematic as crimes go since she gave him the money because he lied to her.  While this seems as if it should be covered by New Jersey’s version of larceny by false pretense, prosecutors apparently couldn’t make it work.  Continue reading

The Post-Ferguson Trade-Off: Whose Life Is Worth Saving?

A constant reference here is the First Rule of Policing: make it home for dinner.  The rule means that in any situation in which a police officer fears for his safety, he will neutralize the threat. That means kill, if necessary.  Whether it’s necessary is a consideration to ponder later.

Whether there is something worthy of fear, or the mere anticipation of something that may be potentially fearful or threatening, is a matter of the cop’s sensitivities. Some are more easily scared than others.  Some have a very low threshold of fear. Very low.

But when a police officer can expresse an objectively reasonable basis to believe he was in fear of death or serious harm, he can kill with, essentially, impunity. And pretty much any cop can make the case, with little more than “he reached for his waistband.” Because we give police the benefit of the doubt as to the truthfulness of their claim, and in the absence of countervailing evidence that strongly, if not conclusively, proves them lying, that’s all it takes for a cop to kill. Continue reading

The Ferguson Lie

Americans may be a smart, educated people, but we are lazy and ignorant. It’s too much effort for our delicate sensibilities to gain a deeper understanding of how our nation functions. This is why the Ferguson Lie happened. This is why the Ferguson Lie works.

That the grand jury did not indict Ferguson Police Officer Darren Wilson was a foregone conclusion.  To those of us who don’t have to look up a study or read a law review article to understand how indictments happen in the real world, the outcome was clear when St. Louis County District Attorney Bob McCulloch announced that he would present all the evidence to the grand jury.  Wachtler’s “ham sandwich” has grown trite in this discussion.

The Ferguson Lie is an appeal to our sense of fairness and transparency.  We were played.  McCulloch’s lengthy spiel before announcing “no true bill” was to spread the lie.  To the ear of the media, McCulloch’s pitch was appealing; the grand jury heard all the evidence.  The grand jury transcript will be disclosed to provide complete transparency.  Witnesses lied to the media, but the grand jury heard the truth. The grand jury saw the hard evidence. Nine whites and three blacks, so no one would think that the grand jury was denied the voice of people of color, sat on the grand jury, which met for 25 sessions and more than 70 hours of testimony.

The grand jury did the dirty work that America needed done.  The grand jury has spoken.

This is the lie. Continue reading

When There Is No Room Left For Facts

Rarely do I mention when I’ve been interviewed, or quoted in a newspaper or appear on TV.  Not only do I find such shameless self-promotion distasteful, but it’s just not that big a deal.  So forgive me for bringing this up, but as the following will hopefully explain, the purpose is to show how views are influenced by the presentation of partial truths when time runs out.

A couple of weeks ago, a call came in from a producer for PBS NewsHour.  He had read my post about Mayor Bill de Blasio’s implementation of Vision Zero in New York City, a plan to eliminate all pedestrian deaths caused by traffic accidents.

The producer had read my post on it, and had questions about the “rule of two,” a poorly-named concept that requires something beyond a mere traffic infraction to elevate negligence to criminality.  In an earlier post about the Court of Appeals decision in the Brett Cabrera case, the “rule” is more thoroughly discussed.

During our conversation, the producer asked me if I would be willing to do an interview about the law surrounding the Rule of Two, about why de Blasio’s “Cooper’s Law,” named after a child run down by a city cab, was doctrinally troubling, and why enhanced penalties for anyone who causes the death of a pedestrian in Manhattan wasn’t nearly as cool an idea as it may at first appear. Continue reading

Whether “Boy With Toy” Or “Black Male,” Tamir Rice Is Now Dead

The 911 caller explained that the gun may not have been real, and the black male may have been a boy.  In fact, it was a 12-year-old boy, Tamir Rice.  The operator’s call to police wasn’t quite so detailed:

Officers responded to the center for a report of a “male threatening people with a gun,” police said. The officers were never told the caller who reported the gun said the gun may be fake, and the person pointing it at people may have been a juvenile, police said.

At first blush, it would seem this omission spelled the difference between life and death for a 12-year-old.  That’s not so clear.  When the police arrived, they had the ability to see the individual, and could determine he was a child.  They also had the ability to see the gun, and ought to have been at least as capable, if not more so, than an unknown 911 caller to say whether it was a real weapon or not.

But even if the 911 operator told the responding officers that it was a 12-year-old boy with what may be a fake gun, would that have changed things?  Would the officers have assumed the gun to be fake because an unknown caller thought it might be?  Not only does it violate the First Rule of Policing, but it’s not prudent under any circumstances.  Even less so under these: Continue reading

Provocation and Queer Fear

At Volokh Conspiracy, Eugene notes an amendment to California’s provocation defense to voluntary manslaughter.

Under U.S. law, killing someone is “voluntary manslaughter” rather than murder if the killer was (1) actually provoked into a rage by the victim, and (2) the killer’s reaction was seen as “objectively reasonable,” in the sense that the law empathized with the killer’s rage though not his conduct (which, after all, remains a crime, just a less serious crime).

While saying this is “under U.S. law” is unfortunate, given that this is a matter of state statute, and there is no such thing as “U.S. law,” it’s a fair generic explanation of the theory behind provocation.  But California’s law deals with a specific issue, one that (no doubt, surprisingly to many) is fairly common: men who are outraged to learn that the person with whom they just engaged in a sex act is not female, and thereupon react with extreme violence and kill the person.

The California Legislature has just passed AB2501, which provides,

(f) (1) For purposes of determining sudden quarrel or heat of passion [for purposes of the voluntary manslaughter test], the provocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship. Nothing in this section shall preclude the jury from considering all relevant facts to determine whether the defendant was in fact provoked for purposes of establishing subjective provocation. Continue reading

The Outrage of the Victim’s Rap Sheet Must End

In the press conference addressing the killing of Akai Gurley by probationary Police Officer Peter Liang, Commissioner Bill Bratton made one thing absolutely clear: “the victim, Akai Gurley, had done nothing to provoke a confrontation with the officers.”

From the time of the shooting through the following day, the NYPD sought to excuse the killing by justifying why a cop would have a reason to be afraid of doing his job, but at least it shows the small degree of class, of integrity, by not following Rule 3 in the Cop Public Relations manual, smear the victim.  In an incident that left little to admire about the NYPD, this alone spoke well of its integrity.

By the next day, it was gone.

Gurley has 24 prior arrests on his record, police said.

Continue reading

The Killing of Akai Gurley: A Mistake, Perhaps, But No Accident (Update)

There was no excuse offered. Akai Gurley did nothing, absolutely nothing, to cause probationary Police Officer Peter Liang to shoot him in the chest and kill him. Whether Gurley did anything wrong in his life before that, even the cops didn’t have the gall to try to taint him with priors so we wouldn’t feel too badly about his killing.  It wouldn’t matter anyway, but that rarely stops people from being stupid enough to connect unrelated dots.

No, Akai Gurley was shot dead for no reason whatsoever. His two-year-old daughter will have no father.  The job he was about to start with the city will be filled by someone else. He can’t do it. He’s dead. For no reason.

Police Commissioner Bill Bratton called it an accident.

The shooting, at 11:15 p.m. on Thursday . . .  But 12 hours later, just after noon on Friday, the New York police commissioner, William J. Bratton, announced that the shooting was accidental and that the victim, Akai Gurley, had done nothing to provoke a confrontation with the officers.

Continue reading

Cosby In Context (Update)

One of America’s most beloved entertainers, Bill Cosby, is now not only a rapist, but a serial rapist.  As his lawyer, Marty Singer, correctly points out, most of the allegations now being raised aren’t new. Rather, they are debunked allegations renewed in the context of new social norms, where challenging such claims is viewed as a form of sexual abuse in itself. Victims can’t be blamed.

But the latest, victim number 7, provides an opportunity to appreciate how conduct that occurred (assuming it occurred) in one era is viewed through the prism of another era, and significantly misinterpreted.

In an interview on WPTV in West Palm Beach, Fla., the woman, Therese Serignese, 57, a registered nurse, accused Mr. Cosby of drugging and having sex with her after one of his shows at the Las Vegas Hilton in 1976 when she was 19.

The narrative of drugging a woman for sex is a recent one.  Today, there are roofies, drugs surreptitiously slipped into a drink to incapacitate a woman so she can be raped.  Concerns abound about men who will target a drunk or drugged woman as well, taking advantage of their incapacitated state.  In the context of today’s narratives, these are the images that come to mind when a woman talks of “being drugged.” Continue reading

The Dark Tactic of Stash House Stings

It works, right?  Isn’t that good enough?

“The conspiracy was real; the guns were real; the defendants’ intent to use them to violently rob a cocaine stash house was real; and the defendants’ criminal histories were real,” the federal prosecutors argued in their brief. The supposed stock of cocaine had to be set high, they said, to make the proposal credible.

How, anyone of good conscience must ask, can we feel badly for such defendants?  Well, the problem arises from the fact that these aren’t defendants caught engaging in crimes.  Rather, these are people who live and hang in poor neighborhoods, where the government sends its friends to troll for the miserable, the pathetic, the losers who might be enticed by visions of big money and an end to their misery. Continue reading

Your Emotional Rescue Meets Brown 25

Brown University was the site of a Janus Forum debate earlier this week on “How Should Colleges Handle Sexual Assault?” The debaters were Wendy McElroy, ifeminists.com editor and “rape culture” skeptic, facing off against Feministing.com founder Jessica Valenti, an evangelist against “rape culture.”  The notion that such an issue could be subject to debate was more than Brown could stand. In response to student protests,

[Brown president Christina] Paxson declared in a campus-wide email that her counterprogramming, titled “The Research on Rape Culture,” will provide students with “research and facts” about “the role that community norms and values play in sexual assault.”

Continue reading

Kickstart The End Of The Penalty

One of the questions often posed by people who are disturbed at what happens in criminal law is “what can I do”?  Here’s an answer: contribute to the kickstarter campaign to complete the document, The Penalty.

The Penalty is a 90-minute film that seeks to lift the lid on the human cost of the death penalty. Centered around three executions, the film pulls back the curtain on the people who are touched by capital punishment every day, but who are often far from death row. We follow the tentacles of the death penalty as they wrap their way around lawyers, innocent men, victims’ families and the political landscape.

The producer, Laura Shacham, who last year made a web series profiling death row exonerees, called One For Ten, is about half way through filming The Penalty.  They need money to finish the project.

Continue reading