September 23, 2004

Everything Not Forbidden is Compulsory

via Instapundit today.

A special new crime in which a certain class of defendants shall be given an "opportunity" to prove their innocence to the state rather than the other way around? To an unschooled, naive legal eye like mine, that looks a bit unconstitutional. No? Well, I expect the folks at Yale Law understand these things better than me and know what they're doing.

Plus, the threat of jail time is generally recognized as a pretty good way to address most public health issues.

Posted by Dr. Frank at September 23, 2004 08:39 PM | TrackBack

After reading the initial article, I was left wondering how people with so much schooling could end up so naive and ignorant. After reading the first comment, I was reassured that there's, thankfully, often someone standing nearby to inform that person of their stupidity.

Posted by: dave bug at September 23, 2004 11:18 PM

Yeah, megastar NBA ballers are outside the "norm" by having unprotected sex.....WTF????? Yeah, that's why Patrick Ewing, Shawn Kemp and their ilk have 17 (known) kids in 17 different cities and have to work in their post NBA "retirement" to afford all of the lawyers, buyoffs and paternity suits. Geeeeeeeeeez.... It's also outside the "norm" and that's why the # of unwed mothers or single partent housholds in the African-American community is an alarming 73% .

Also, Kobe Bryant will forever by known as "the rapist" much like OJ is "the Murderer".

Posted by: Zaphod at September 24, 2004 01:51 AM

I work in a Sex Crimes Division, prosecuting the most vile sex offenders, and I suppose I'm becoming quite an "expert" in the area sex crimes.

I doubt this proposed law would ever get passed by a legislature. But the part about having the opportunity to prove consent is an affirmative defense. It's like in a sexual assault case, the defendant could either say, "I'm not guilty because it wasn't me," or "I'm not guilty because there was consent."

Unprotected sex is, indeed, a public health issue, rather than the type of action that should be classified as a crime.

We have plenty of other sex crimes to fill our court calls.

Posted by: karen at September 24, 2004 04:41 PM

Karen, you say that in a sexual assault case proving consent is an affirmative defense, but I don't think that's true. Isn't lack of consent an element of the crime of rape? If it's an element of the crime, then a defendant who proves consent is not offering an affirmative defense, he's straightforwardly proving he didn't commit the crime.

An affirmative defense is something like justifiable homicide (yeah, like the song) -- i.e., a situation where the defendant committed all the elements of the crime, but other factors mitigate his guilt. Or, in the civil context, copyright fair use -- i.e., you committed copyright infringement, but your use is nonetheless deemed "fair" and will not subject you to liability.

In the case of the proposed criminalization of unprotected sex, the problem is that the elements of the crime are drafted so that they can be met by even a totally consensual sex act. Yes, the defendant has the opportunity to prove consent as an affirmative defense, but this flips the burden of proof, arguably in violation of Constitutional due process requirements (i.e., "innocent until proven guilty").

Posted by: Aaron at September 24, 2004 08:40 PM

I don't think people realize how lawyers are immune to the system they know best. checks and balances, i don't think they have implemented standards and benchmarks in that area yet, if ya know whadda i mean.

Posted by: Leslie at September 25, 2004 10:50 PM

I am taking a chance here by doing this, but i do need some help. My Fiance was convicted of a sex crime, but they failed to go back and look at everything. The girl was 15 and he was 20, yes that is wrong, but she never once said her age. She also was a run away, when the cops found out where she was they got her and she had a mark on her neck, the cops asked what is was from, she told them, and then she said that it was her boyfriend. BUT! When she got home and found out that her parents where mad at her, she changed her story to " I was raped" they took her to the hospital and did a rape kit. Nothing was found. So they put my guy on probation, he was not to have any contact with anyone under the age of 18, i was 17 when we met, and we started dating, well the probation people found out and arrested him. I went to court and defended him because my mom knew what was going on and had no problem with it. And in the state of colorado when you are 17 you can date 5 years older then you. So i guess what i am asking is...he is in prison now, but is there a way to open his case back up and get the truth told?

Posted by: Lynn at July 5, 2005 03:05 AM