Posts Tagged ‘defenses’

Drunken Double Standard?

Thursday, March 17th, 2016

Readers of my Illustrated Guide to Law have frequently asked about a seeming double standard in criminal law when it comes to drunkenness. On the one hand, a person who is too drunk to think will be liable for crimes he commits; but on the other hand, a person who is too drunk won’t be able to consent to sex, even if she said yes. If you’re drunk, your actions are voluntary… unless you were having sex, in which case it was involuntary. It sounds like the rules change once sex enters the picture, and only then does alcohol absolve one of responsibility.

The rules really don’t change, however. There’s just two different rules, for answering two very different questions.

So for my non-lawyer readers (you lawyers already know this 1L stuff, go read another post or check out the awesomeness over at Fault Lines), here’s what’s going on:

With liability, the law is trying to decide whether you should be punished for something you did. But in the rape scenario, the law is trying to decide whether you are a victim. Two entirely different things.

With liability, the question is “did you do a bad act, and should you be blamed for it.” Let’s just presume you did a bad act, but you were blotto when you did it. Let’s say you were too drunk to know what you were doing. But you’re the one who got yourself drunk. Well, it’s your fault that you got so drunk you hurt someone, so it’s your fault he got hurt. You may have not had the intent to commit the crime at the time, but you voluntarily had that eighth shot of tequila. The law’s not going to let you get away with hurting someone just because you were hammered at the time.

(Some states do take intoxication into account when the crime required you to intend a specific outcome. So you could be liable for hitting someone with a bottle, but not for hitting someone with the intent to disfigure them. But not all states do this. Yours probably doesn’t.)

So you’re blameworthy if you do something bad while drunk. But why would you be blameworthy if something bad happens to you while you’re drunk? That’s where the rape scenario is different.

When thinking about the law of rape, it really helps to take the sex out of it. Instead of thinking of a sex act, think of it like any other assault. An unwanted offense to another person’s body. Rape is, in essence, a particular form of assault. And consent becomes an issue.

Two boxers are in the ring. Playing by the rules, one lands a fair punch on the other’s noggin. The other falls to the canvas, cut, bruised, bleeding, unconscious, and will awaken with minor brain damage. But the loser consented to the contest, consented to what might happen to him under the rules, and so the victor has committed no crime. This was not an assault.

The victor now goes home to find his wife asleep. Remembering a remark she’d made that morning about his looks, he gets pissed off and punches her in the face while she sleeps. She did not consent to that blow, and so he has committed an assault. Easy, right?

Later, the loser and the victor are out drinking. The loser notices that the victor is really drunk. Too drunk to really know what he’s doing. So he takes him to their gym, coaxes him into the ring, starts sparring with him, and lands a revenge punch that breaks the guy’s cheekbone. The victim was too drunk to consent, the other guy knew it, and that was an assault. The fact that the victim voluntarily got himself drunk doesn’t make him any less a victim. Easy, right?

That’s how it works with rape. Even if someone voluntarily got herself too drunk to consent, it doesn’t change the fact that she didn’t consent. Any victim of a crime who happened to be drunk at the time is still a victim.

(And to forestall the inevitable questions about how consent works, here’s a flowchart I did for the comic a while back.)

And that’s what’s going on with drunkenness. There’s no drunken double standard. Intoxication doesn’t absolve anyone of responsibility. Voluntarily getting yourself drunk isn’t going to absolve you of blame for your actions. And if you’re the victim of a crime, being drunk doesn’t make you any less a victim.

Hope this helps.

Let’s Make a New Law!

Thursday, October 24th, 2013

Any moderately well-informed person these days is aware of the shocking injustices that happen whenever criminal laws get written by people who don’t really understand what criminal law is, or how it works. (Brilliant summary here.) They tend to create crimes that are ill-defined, overbroad, and usually an overreaction to the perceived harm. The results can be pretty bad.

How much more cause for concern, then, when the proposed crime violates not only the fundamental principles of criminal jurisprudence, but cherished individual rights that have nothing to do with crime?

And how much more cause for concern, then, when those who catch potential problems are not engaged in thoughtful debate, but are instead shouted down and accused of malicious and reprehensible conduct?

It looks like that’s what’s been going on recently in an ongoing debate over proposed “Revenge Porn” legislation that’s floating around out there. At first the shenanigans were amusing to watch, but lately it’s turned into a distressing train wreck online. A law has been proposed in reaction to something with a lot of emotional pull, thoughtful people have voiced concerns that it may be a bad law, and its proponents have responded less with reasoned debate than with emotional backlash. Those who disagree are shouted down as stalkers and assholes; their comments are deleted so that others may not see them.

Ignoring whether either side is right or wrong, what a terrible blow this has been to the credibility of the law’s proponents. Think how insecure they must be in their own assertions to react so defensively. How much confidence can than inspire in the rest of us?

-=-=-=-=-

“Revenge Porn” is pretty much what it sounds like. You’re in a relationship with someone, they let you have some nude pix, then there’s a breakup and you feel bitter and to get back at them you post their nudes online for the world to see. It’s a nasty, cruel thing to do. It’s not hard to imagine society thinking the practice to be so bad that it deserves to be punished. It’s easy, in other words, to see Revenge Porn as something that might be criminalized.

Some law professors have been pushing a model statute that would criminalize the practice. So far, no big deal. This is something that law professors are expected to do.

None appear to be professors or practitioners of criminal law, though. That’s not encouraging. Those reviewing the language will therefore probably want to keep an extra-sharp lookout for things like imprecise (or missing) mens rea, over-inclusive definitions, and conflated or confused concepts, etc. Nothing personal, just a normal precaution. You get this stuff all the time.

An extra wrinkle comes from the fact that posting a nude picture of your ex counts as “speech” for First Amendment purposes. And the First Amendment doesn’t let the government criminalize speech, except in very tightly controlled circumstances. Even the most awful, painful, hurtful and distressing speech (such as that of the Westboro Baptist “Church”) is not something that gets criminalized in this country.

-=-=-=-=-

This is a criminal law blog, not a First Amendment forum, and so it’d be somewhat off-topic to get into whether or not Revenge Porn is something that can be criminalized without running afoul of Freedom of Speech. But it is pertinent to note that the professors’ interpretation of the 1st Amendment here is not universal — and it is also relevant to examine how they have reacted to the ensuing disagreement.

To be fair, the law’s proponents are from academia, where disagreement (often) = bullying and criticism (sometimes) = hate speech. Where speech is generally not very well protected, in the first place. Where debate can be frowned upon and contrary points of view shouted down, removed from newspaper bins, at times even persecuted and hounded out. You ain’t seen petty vindictiveness until you’ve seen someone challenge the orthodoxy. You don’t get this from the better professoriate, of course — there are plenty of wonderful academics who welcome healthy debate, the chance to make their case or (as the case may be) get a new point of view. But there are plenty of others who prefer to point to their credentials and their peer-acceptance as proof of their correctness, and who get the most defensive when challenged.

You can usually tell which kind of academic you’re dealing with based on how they react to a contrary position. The ones who are pushing the Revenge Porn law, sadly, seem to be falling into the lesser camp so far. This is not good for their credibility.

So to the extent that First Amendment practitioners are in dispute with these particular academics, one might be inclined to conclude that the practitioners could perhaps be more likely to be correct.

-=-=-=-=-

But again, this is a criminal law blog. So how does the law look from the perspective of our criminal jurisprudence?

Not… not so great.

Here’s what the model statute says:

Whoever intentionally discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.

(a) Definitions: For the purposes of this section,
1) “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.
2) “intimate parts” means the naked genitals, pubic area, buttocks, or female adult nipple of the person.
3) “sexual contact” means sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.

(b) Exceptions:
1) This section shall not apply to lawful and common practices of law enforcement, the reporting of unlawful conduct, or legal proceedings.
2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.

…..

Holy cannoli, where to begin…?

The first problem is one of good old mens rea: It criminalizes disclosing the image without the subject’s consent, regardless of whether the actor knew about it one way or the other, or meant to do so without consent. It criminalizes the act where the subject had a reasonable expectation of privacy, regardless of whether the actor knew or had any reason to know it. The only mens rea here is whether the image was disclosed intentionally.

It’s a strict liability crime. Whenever you see that, huge red flags should be popping up in your head screaming “INJUSTICE AHEAD!” Sure it doesn’t criminalize accidentally dropping a photo out of your wallet, but it does criminalize showing it to people with the mistaken belief that your wife was cool with it — or without the knowledge that she had since changed her mind.

The second problem is one of conflated concepts. “Reasonable expectation of privacy” is a concept of Fourth Amendment law — of procedural rights, not of criminal liability. It is a term of art that has been defined in a fairly convoluted fashion over the years in such a way that the average layman couldn’t give you an accurate definition of the phrase if his life depended on it. His liberty would depend on it, here. The authors probably don’t mean for this phrase to have the meaning & baggage it carries in Fourth Amendment jurisprudence. They just think it sounds good. And so there is inherent confusion in the statutory language. It is not clear what is actually meant here. And where there is vagueness in criminal law, where there is room for interpretation, there is room for cops and prosecutors to screw over the regular Joe. And if you don’t think that happens, you’re not getting out enough. When you see conflated concepts and room for interpretation, those red flags ought to be screaming at you even louder.

The third problem is one of unclear writing. Seriously, what do the “consent” and “reasonable expectation of privacy” clauses modify? Does this refer to images that are disclosed without consent, or taken without consent? Does this refer to images that were disclosed under circumstances where someone had an expectation of privacy, or taken under such circumstances? Is it criminalizing pictures of sexual acts that were nonconsensual? What about images that were taken by someone else, and then given to you by your ex? What about images that someone else forwarded to you, or you found online, and had no way of knowing whether they were consensually/privately taken or disclosed (whichever verb applies)? It can be read all of these different ways.

There is literally no way of knowing for sure what conduct is criminalized here. As written, it outlaws all kinds of behavior its authors probably didn’t mean to punish. It is overbroad as hell. You hear those red flags? Since when do flags scream? These are. Get some earplugs.

Strictly from a criminal perspective, this is a god-awful statute. It’s another one of those “think of the children” “take back the night” “let’s name a statute after the victim” kinds of legislation that pave an eight-lane superhighway to hell with their good intentions.

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You want a statute that works? (Again, ignoring any First Amendment concerns.) Here’s one I banged out in court this morning while waiting for a case to be called. Zero research or deep thought went into it:

…..

DEFINITIONS:

(A) “Private Sexual Image” = any media containing:

(i) an image taken in a non-public place, and in a non-commercial setting…

(ii) of a living person whose identity is readily ascertained from the contents of the image…

(iii) and depicting that person’s unclothed genitalia, buttocks, or female breasts, or depicting that person engaged in sexual intercourse, oral sex, manual-genital contact, or other such sexual behavior…

(iv) and which has not previously been “distributed” as that word is defined herein.

 

(B) “Distribute” = make publicly available by any means, including displaying in public or in a publicly-accessible medium, sharing via any communication or peer-to-peer arrangement, and any other method that makes a duplicate of the image available to others. Excluded are private acts of showing the image, without duplication or transmission, to individuals or small groups of people.

 

CRIMES:

Any person who, with the intent to harass, shame, or defame another person:

(1) distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of that other person;

(2) when he knows, or a reasonable person similarly situated would know, that he does so without the consent of that other person; and

(3) thereby does harass, shame or defame that other person

is guilty of a Fucking Nasty Crime.

 

Any person who, with the intent to harass, shame, or defame another person:

(1) distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of that other person;

(2) when he knows, or a reasonable person similarly situated would know, that he does so without the consent of that other person

is guilty of a Nasty Crime.

 

Any person who

(1) intentionally distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of another person;

(2) when he knows that, or recklessly disregards whether, he does so without the consent of that other person

is guilty of a Crime.

 

DEFENSES.

It shall be an affirmative defense to all of these crimes that, when the image in question was originally taken, it was reasonable to expect that it would later be viewed or possessed by people other than those who were a subject of the image, the person taking the image, and the person accused of distributing the image.

It shall be an affirmative defense to the Fucking Nasty crime that the image in question was transmitted to the accused via electronic or other means whereby the image could be “forwarded” or otherwise duplicated and transmitted to third parties.

…..

There, quick and easy. There’s probably stuff to fix in there, as well, and again who knows if it’d pass constitutional muster on other grounds, but it’s hardly as overbroad or prone to injustice as the one those professors are promoting.

I bet you can do it even better. You are cordially invited to tear my suggestion apart in the comments, and provide your own language. Have at it!

Myth #3: “I was Entrapped!”

Thursday, October 20th, 2011

So you were hanging out with your buddy Joe, a guy who buys weed off you every now and then. Joe tells you he knows a guy who’s looking to buy more than Joe usually gets, and offers to introduce you. One thing leads to another, and soon you’re making a big sale to this new guy. As soon as everything changes hands, you’re cuffed and arrested. Turns out your buddy Joe was an undercover all along. He set you up! A cop! That’s entrapment, right?

Or maybe you were a out on a call, meeting another poor schlub at his hotel room to trade a little physical pleasure for a little cash. As is your practice, you make sure to confirm he’s not a cop first. He says no, you discuss what he’d like to do and for how much, and now you’re in handcuffs. What the hell? He lied to you! A cop! That’s entrapment, right?

Or maybe you were out protesting the latest outrage du jour, and you and your buddies decide to move the protest to a major thoroughfare at rush hour. The cops don’t stop you until you’re there, and then they arrest you. They let you do it! The cops! That’s entrapment, right?

Nope, nope, and nope.

Entrapment is not what most people think. It’s not when the police conspired with you to commit the crime. It’s not when your decision to go ahead with the crime was based on a police lie. And it’s not when the police didn’t stop you from committing the crime.

The police helping you commit a crime is not entrapment. Entrapment is when the police made you commit the crime, when you wouldn’t have done so otherwise.

Entrapment is when you would not have committed the crime, period, if the police hadn’t made you do it. If you’d never sold drugs in your life, but the undercover begged you for weeks to do the deal to save him from being killed by his supplier… maybe that’s entrapment. If you were not going to that hotel room as a prostitute, but for a purely social encounter, and the cop gave you money you’d never asked for… that’s probably entrapment. And if the cops out-and-out told you and your fellow protesters to go onto that street, and then arrested you for doing what they told you… that’s entrapment.

-=-=-=-=-

Different states deal with this differently. Some look at your (more…)

Memo to Child Porn Defendants: The “It Was Only Research” Defense NEVER WORKS.

Thursday, May 7th, 2009

GEN. MELCHETT: Field Marshall Haig has formulated a brilliant new tactical plan to ensure final victory in the field.

CPT. BLACKADDER: Ah… Would this “brilliant plan” involve us climbing out of our trenches, and walking very slowly towards the enemy?

CPT. DARLING: How could you possibly know that, Blackadder? It’s classified information!

CPT. BLACKADDER: It’s the same plan that we used last time. And the seventeen times before that.

GEN. MELCHETT: Ex-ex-ex exactly! And that is what is so brilliant about it! It will catch the watchful hun totally off guard. Doing precisely what we’ve done eighteen times before is exactly the last thing they’ll expect us to do this time! There is, however, one small problem.

CPT. BLACKADDER: That everyone always gets slaughtered in the first ten seconds.

GEN. MELCHETT: That’s right.

From “Blackadder Goes Forth” Plan A: Captain Cook


(Quoted scene begins around 8:30)

Because of the frankly horrible topic of this post, we thought we’d dilute it a bit with a bit of Atkinson, Fry and Laurie. But it’s on point. As this clip illustrates, it simply defies common sense to try the same thing repeatedly and expect a different outcome.

But in child porn cases, defendants and their attorneys keep trying the same thing over and over, and all that happens is they go to jail.

We’re talking about the “I was only doing it for research” defense. Pete Townshend of The Who tried it, to no avail (although possession charges were dropped six years ago today, when no porn was found to be in his possession, he was still put on the sex offenders registry for paying to visit a child porn site). Any number of less-well-known defendants have also tried it and failed. Washington Post reporter Lawrence Charles Matthews tried it, and he actually had done a radio series on the subject, and he still got time (and his case, U.S. v. Matthews, 200 F.3d 338 (4th Cir. 2000) specifically held that there is no exception for journalistic or other allegedly-legitimate uses of child porn). A law enforcement officer, Michael McGowan, claimed to have been doing his own investigation on his own time, and wound up getting 20 years. Talk show host Bernie Ward claimed he was doing research for a book, and got 87 months last year.

Even though the defense never works, people keep trying it. And so we come to erstwhile war hero Wade Sanders, the former assistant deputy Secretary of the Navy who came to national prominence when he vouched for former presidential candidate John Kerry, who just got sentenced to federal prison.

First, some background. CAUTION: EXTREMELY DISTURBING CONTENT FOLLOWS.

During an apparently typical investigation, an undercover FBI agent logged onto a peer-to-peer file sharing service (where members can copy files from each other’s computers), and searched for computers containing files with the term “pthc,” which is shorthand for “preteen hardcore.” The agent found several child porn files on Sanders’ computer, including a photo of a preteen naked girl lying on her back with ejaculate on her stomach, a 10 minute video of adult males inserting their penises into the mouths of prepubescent naked girls with one scene of ejaculation, and a photo of two naked prepubescent boys engaged in anal intercourse. It was easy to identify the location of the computer where the files were located, and a search warrant was obtained. On executing the search warrant, three computers and an external hard drive were seized, all of which contained many more equally disturbing photos and videos. (This is common. Most offenders who possess child porn possess a large quantity of it.)

During the search, Sanders spoke with the agents. When asked if any child porn would be found, he only said that he sometimes encountered it while downloading adult porn, and always deleted it. At no time did he suggest that he was conducting research that might explain any child porn they might find. And he wasn’t found to actually have any research notes or materials.

The evidence appeared strong enough that he decided to plea to the charge, under 18 U.S.C. § 2252(a)(4)(B). Under the Guidelines, his offense level was adjusted upwards for having materials involving under-12 kids, using computers, distributing materials, and possessing over 600 images, to level 29. He got the standard 3E1.1 three-level reduction for accepting responsibility, getting him to level 26, with a sentencing range of 63 to 78 months.

At sentencing, the prosecution asked for the low end of 63 months. Sanders sought probation.

In his own defense, Sanders claimed that he was researching child porn, but with a twist. He started by saying he’d gone through hell in Vietnam combat. Then, in 2004, he started supporting John Kerry for president, and was criticized by other veterans. This criticism made him feel betrayed, and sparked an onset of post-traumatic stress disorder. This PTSD manifested itself with obsessive-compulsive behavior. He then stumbled on an image of child porn, was horrified by it, and became overly protective of the little kids. So he obsessively began trying to find out where the kids came from and the conditions they lived in.

The judge, Thomas Whelan, flatly stated that he didn’t buy it. He found no evidence that Sanders was telling the truth about being involved in any research. Sanders never mentioned this during the search, either. And his own story didn’t explain the stuff he’d downloaded before 2004. Judge Whelan also pointed out that the “I was only doing research” claim, even if true, is still not a valid defense under the law.

So, although the judge did come down off the Guidelines sentence, Sanders still received 37 months in prison — at the end of which he will be 105 years old. In all likelihood, this is a life sentence for the man.

* * * * *

What puzzles us is why people keep trying this defense, when the law doesn’t recognize it and it never ever works?

If we might be a little shameless here, we’d recommend that people try our piece titled “Understanding the Investigative Process to Better Defend Your Client,” in Inside the Minds: Strategies for Defending Internet Pornography Charges (2008). Or they might take our online CLE on defending internet porn cases, (the first in our “Hope for Hopeless Cases” series with West LegalEdcenter, which also includes that chapter in the course materials.

These cases rarely go to trial. Like Sanders, defendants usually plead out because the evidence appears overwhelming. Still, appearances can be deceiving, and there are often ways to attack the evidence itself. Maybe not enough to justify taking the case to a jury, but perhaps enough to negotiate a better deal. (Not implying that was the case with Sanders, nor impugning his attorney in any way, of course.)

What is most likely to work, however, is not trying to explain it away. Rationalizing the evidence is only going to hurt your credibility, as it did to Sanders.

Instead, what is most likely going to work is to attack the evidence itself. This is time-consuming and expensive, and isn’t guaranteed to work. After all, investigators have the luxury of building their own cases, and cherry-picking the strongest cases from the enormous number of possibles they could charge. Ideally, you want to be able to give the prosecution a new way of looking at the evidence, so that they realize it’s not necessarily as strong as they originally thought. It takes deep understanding and analysis by experts, as well as compelling advocacy. But even in a less-than-ideal situation, the more you can put the prosecution on the spot to defend its evidence — that the photos are real, that they depict real people, that the kids really are minors, etc. — or the more you can raise doubt about how incriminating it is, the better your chances of a decent plea offer.

Prosecutors rarely change their assessment of what a case is worth based on excuses and rationalizations. They made up their mind based on the evidence they have. A good defense is going to give them a new way of looking at that evidence, to get them to re-assess the defendant’s culpability, their chances of success, or (yes) the amount of work they’re going to have to do if this goes to trial.

And FOR THE LAST TIME, PEOPLE, “I was only doing research” is NOT going to do the trick.