Seems kind of obvious, doesn’t it? Yet it hasn’t been this way before : The FBI is changing its long-standing definition of rape for the first time to include sexual assaults on males following persistent calls from victims advocates who claim that the offense, as currently defined in the agency’s annual crime report, has been undercounted for decades. Under the current definition, established 85 years ago, many of the sex crimes alleged in the ongoing prosecution of former Penn State assistant football coach Jerry Sandusky would not be counted in the bureau’s Uniform Crime Report, one of the most reliable measures of crime in the United States. Sandusky is accused in alleged assaults and sexual misconduct involving 10 male victims. Rape is currently defined as the “carnal knowledge of a female forcibly and against her will.” The new provision will define rape as any kind of penetration of another person, regardless of gender, without the victim’s consent. I have seen statistics that show more men are raped in this country every year than women, and while I am unsure of their accuracy, the fact is that rape of men is common — in prison. Long-time readers of the site know that I do not consider prison rape funny . Not only is it not part of the prescribed punishment, but the victims are likely to be weaker and less violent people — meaning that even if you did subscribe to a vigilante justice ethic, you’d still be letting the most violent get their jollies at the expense of the least violent. The FBI’s collection of these statistics will not settle the question of the extent of rape of males, since prison rape is often unreported. But it is a step in the right direction. Thanks to Gabriel Malor on Twitter.
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FBI Will Now Count Rape Against Men in Crime Statistics
Here’s an interesting little legal issue — one that is apparently easier to resolve properly if you have not had legal training. California Penal Code section 288.7(a) reads as follows : Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life. That simple language in bold is apparently too difficult for some judges to understand. Our hypothetical defendant is 19 years old. The evidence shows that he met the victim at her 10th birthday party. One week later, he had sex with her. Is he subject to the penalties provided by this law? As a common sense person, dear reader, you are saying: of course he is! The victim was 10 when he had sex with her. She just had her 10th birthday! And the penalties apply if the victim is 10 or younger. What’s the problem? It turns out that at least one California court saw a problem. That court said “10 years of age or younger” means “exactly 10 years old, not one day more” . . . or younger. In other words, the day after the victim’s birthday, she is no longer “10 years of age of younger” . . . according to these legal geniuses. That conclusion is, of course, absurd. If you asked this girl how old she is, she would say: “ten.” If you asked her mother how old she is, she would say: “ten.” If you asked all her friends and relatives how old she is, they would say: “ten.” If the statute says the victim must be “10 years of age OR younger” and she is “10 years of age,” then the statute applies. I don’t care what the legislative “intent” was. I don’t care about the “rule of lenity” or any other mumbo jumbo. Not in this case. Because here the language is clear. The girl is ten. The statute applies. Next case! This is what I mean when I stress that “legislative intent” should not matter to the interpretation of a statute. This court actually bemoaned the fact that there was no legislative history available to help out. The court also noted that several other cases in other jurisdictions had resolved similar issues in the same silly way (as well as several that resolved it properly). The court further noted that, in many cases, “courts have been able to resolve the issue on the basis of an illuminating legislative history.” Legislative history. Aaaaaargh! So, let’s say a legislator didn’t like the law, and was pushing to make the victim’s age “11 years or younger” before harsher penalties kicked in — but ended up voting for the statute in a pander to the public. He could simply have a staffer slip something into the legislative record talking about how “10 years or age or younger” really excludes anyone who is 10 years and a day. And one suspects certain idiot judges would pay attention to that kind of dishonest crap. Not me. To me, the words mean what they mean. Trying to divine some “legislative intent” from clues in speeches and notes from committee meetings is a fool’s errand. The plain language should control. Luckily, sanity may win out. The California Supreme Court has granted review and the case may not be cited. At least one other court has come out with a sensible ruling going the proper way. But when you throw common sense out the window, the law can take the most obvious, plain meanings of words, and twist them into something that would make the man on the street furrow his brow and say “What now??” It’s not always lawyers who do this, mind you. But they seem to be mighty good at it.
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Another Example of How Lawyers Ignoring the Plain Meaning of Language Go Astray
Years of living in Wyoming deprived me of a vice that unlike all others I never gave up, playing the lottery. Wyoming –thanks to an anti-gambling faction in the state legislature and a regular thumbs down from voters in past statewide referendums — does not participate in the national Powerball lottery (the proceeds of which are used to support “education,” but that’s another piece in itself). The casino operated by the Northern Arapahos on their Wind River Reservation is beyond state jurisdiction. I knew people in Cody who drove forty miles north to Belfry, Montana to get their tickets. Now that I live in Salmon, Idaho, I simply pick them up at the nearest convenience store. Twice a week I invest in a Powerball Quick-Pick ticket. I say “invest” because the investment promises a possible return of $3 to multi-millions, and you have to — as the saying goes — be in it to win it. Last week somebody in Pennsylvania won $59 million. A couple of weeks before that a Connecticut ticket scored $254 million. Unlike other players I don’t ritually use the same numbers week after week, but take the random Quick-Pick. But other rituals are familiar: signing the ticket and checking the numbers online, or via a phone recording or newspaper. Of course, the odds of taking the grand prize are astronomical. The 195 million to one odds of hitting the jackpot has been compared to blindfolding yourself and then on your hands and knees locating a pea placed on a football field. At eleven million to one, one is more likely to be the victim of a shark attack tenfold. It’s 5 million to one to hit the $200,000 prize (50 percent more likely than the shark attack), 723,000 to one to win $10,000. Throw in the lower tier prizes ($100, $7, $4, $3), and the player has a 35 to 1 chance to win something. I have hit two $4′s and a $7 and these merely paid for the next few upcoming tickets. The ticket costs a dollar, so my annual expenditure is $104. A friend tells me that this sum is a “tax on stupidity,” but if that’s the case then I’m not as stupid as I used to be. After all, gambling (or its modern euphemism “gaming”) is the only vice that promises that aforementioned possible dividend. I drank rather heartily for years and the only investment return I gained from that were hangovers. I’m guessing that I spent that $104 on a sometimes weekly basis during my bibulous career. Even just a six pack of beer in the pre-microbrew 1970s-’80s cost two or three times what I spend on one Quick-Pick today. I was a cigarette smoker until about twenty years ago. At the time a pack of cigarettes — depending on the brand — cost approximately two dollars (it’s twice that and more today). I smoked roughly a pack per day, so I’m guessing that I spent fifteen bucks per week (occasionally buying a full carton was more economical, of course). This adds up to $780 annually. The only thing I got from smoking was the chance (hopefully now diminished) to develop lung cancer or emphysema. Certainly no multi-million dollar payoff there. No high-end real estate transactions or international travel. No weekends at the Ritz in Paris. The two bucks per week I now devote to lottery tickets bought one pack of smokes in 1990. Like many folks who came of age circa 1970, I dabbled in my share of drugs, especially marijuana. My current non-participatory research tells me that dope is more potent and pricey nowadays. Legal medical marijuana distribution seems to be yet another aspect of an insanely expensive healthcare system. Small amounts of weed so strong that it will not only get you high, but, well, maybe in touch with your ancestors. In 1972, just graduated from high school, I had a job in a warehouse that netted me $90 per week. I devoted $20 of this paycheck to a weekly one ounce bag of pot, which back then was a good deal. It was rather tame stuff, commonly referred to as “commercial Mexican weed.” The better “Acapulco Gold” and Colombian stuff were rare and went for $40 and more, and was mostly beyond my means. I don’t think I spent the $20 every single week, but if I did the annual bill came to $1,040 — over a grand, and ten times my current lottery ticket bill. For this investment I risked tangling with law enforcement and jail time. My dealer was a high school friend who displayed his wares in an elegant alligator-skin briefcase. Always entrepreneurial-minded, we planned to invest our share of George McGovern’s promised $1,000 tax credit for low income Americans (McGovern dropped this scheme from his platform before election day, but I was probably too stoned to notice) in a projected retail marijuana business. So I cast my first vote in a presidential election accordingly. Fortunately, the majority of the American electorate was wiser than I. The libertarian in me says “What the hell?” but I do wish I’d never spent all that money — so long ago — on dope, booze, and cigarettes. So, today, my motto can be found printed at the bottom of every Powerball ticket I buy: “Please play responsibly.”
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Vice Economics
(The Blaze/AP) The woman accused of wreaking havoc at a California Walmart by showering fellow Black Friday shoppers with pepper spray, surrendered to authorities but was released pending further investigation after she refused to discuss the incident, police told The AP Saturday. The woman, whose name was not released, is suspected of firing pepper spray into a crowd in order to clear a path to a crate of Xbox video game players that were being unwrapped late Thanksgiving night at a Walmart in the upscale Porter Ranch section of the San Fernando Valley. A video posted on YouTube may show the incident. It reportedly shows the moments after a woman pepper sprayed shoppers over video games: The suspect got away in the confusion, and it was not known if she bought one of the Xboxes. Ten people suffered minor injuries from the spray and 10 others sustained cuts and bruises in the ensuing chaos. “Last night at 8:30 the suspect involved in the pepper spray incident at the Porter Ranch Walmart turned herself in,” police Sgt. Jose Valle said Saturday. She immediately invoked her right against self-incrimination, however, and refused to discuss the incident further. Police released her pending further investigation. Valle said investigators still have nearly a dozen witnesses to interview, including several spraying victims. He added it would likely be at least two days before an arrest in the case could be made. If the woman who surrendered is indeed the person who sprayed the crowd she could face battery charges. The attack took place about 10:30 p.m., shortly after the Walmart opened its doors for the traditional Black Friday sales that kick off the Christmas shopping season. A crowd of people had gathered to wait for store employees to unwrap the crate of discounted Xboxes. The incident was one of several across the nation that marred this year’s Black Friday. In the most serious case, a robber shot a shopper who refused to give up his purchases outside a Walmart in the San Francisco suburb of San Leandro. The victim was hospitalized in critical but stable condition. San Leandro police said the victim and his family were walking to their car around 1:45 a.m. Friday when they were confronted by a group of men who demanded their shopping items. When the family refused, a fight broke out, and one of the robbers pulled a gun and shot the man, said Sgt. Mike Sobek. Read the original: Black Friday Pepper Sprayer Surrenders in LA
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Black Friday Pepper Sprayer Surrenders in LA
[Guest post by Aaron Worthing. Follow me on Twitter @AaronWorthing.] Strap yourself in, because this is a long one. Today via the AP , we read about the complaint that Karen Krausharr, one of Cains’ accusers who has not given details (as of this writing), made against the INS when she was their spokesperson. Her complaint about not being able to telecommute after an accident is… interesting, but not ultimately very illuminating. But her complaint about a mildly sexist allegedly humorous email is useful at this stage of the investigation, because she is being coy with the details of her accusation against Cain. All we know is she considered Cain’s conduct toward her inappropriate, and thus it is useful to see where her threshold for “pain” is, and apparently it is very, very low: The complaint also cited as objectionable an email that a manager had circulated comparing computers to women and men, a former supervisor said. The complaint claimed that the email, based on humor widely circulated on the Internet, was sexually explicit, according to the supervisor, who did not have a copy of the email. The joke circulated online lists reasons men and women were like computers, including that men were like computers because “in order to get their attention, you have to turn them on.” Women were like computers because “even your smallest mistakes are stored in long-term memory for later retrieval.” Of course if she ever tells us what precisely Cain has allegedly done, then it won’t matter whether she has been quick to file a complaint in the past or not. But until we can independently judge the severity of Cain’s alleged conduct toward her, this evidence is relevant and provides some illumination as to what she considers worthy of complaint. But I didn’t really want to talk about that. As you might guess from the title, what this article really brings home for me in a serious way is how far we have strayed from our Constitution in the laudable goal of workplace equality. But first, I have to make you understand what sexual harassment law is about. Many people think it has to be about sex, as in the act or human sexuality. The other day, for instance, James Taranto wrote the following: The presence of both sexes in the workplace makes necessary some combination of laws, policies and customs to regulate sexual behavior on the job. But let me throw a hypothetical at you for a moment. Imagine a white employee goes up to a black employee and starts calling him n——, calling him a slave, saying he should be lynched, and so on. What would us lawyers call that? Racial harassment (among other things). That is harassment directed at an individual because of his race. And if a Jewish employee approached a gentile and started calling him a damn Christian, saying everyone in his faith are perverts, and that he should be shot, that would be… religious harassment. And likewise there can be age harassment, disability harassment, and so on. Indeed, I have personally been the victim of disability-based harassment. So Taranto seems to think that sexual harassment law is about regulating our sexuality. It is not. When we hear the word “sexual” in sexual harassment, our dirty minds think of human sexuality—the attitudes, acts, etc. associated with the act of sex. But that is not the meaning of the word in that context; in that context, “sexual” means “based on gender.” I have long told people that it is better to call it gender harassment so as to avoid this basic misunderstanding. Sexual harassment, therefore, is just one subset of a number of doctrines prohibiting harassment that has grown up under our civil rights laws. The impetus behind the development of the law of discriminatory harassment seems pretty obvious, too. Surely when the Civil Rights Act of 1964 was passed there were some people who thought they could hire equally, but then make black people (or any other group they dislike) feel so unwelcome (indeed often leading that person to fear for their lives and safety) that they would voluntarily quit. So you need a rule that prevents employers from actually harassing based on undesirable traits and even requires employers to prevent such conduct between employees. Thus the concept of harassment by hostile environment was born. And of course applied to women a new problem started cropping up. When a man in says to a woman who is his secretary, “sleep with me or you are fired,” he obviously is not typically trying to drive women out of the workplace. I mean, I can imagine a situation where a man who just hates women in the workplace might require a woman to engage in sexually humiliating conduct as a way of driving her out, but let’s face it, it’s more often about horniness than anything else. (No, I don’t buy the claim that sexual harassment is about power. Power is the means to the end, not the end itself. The goal is in most cases just to have sex.) What the creepy boss is doing in my hypothetical, really, is trying to change the job description of his secretary, from the ordinary duties of a secretary to the ordinary duties of a secretary, plus the services of a prostitute. And if you are wondering how that is gender-based, well… ask your self this: would he do the same if his secretary is a man? The answer is almost always “no.” (There was a case where a man claimed to be an equal opportunity sexual harasser. I never found out how that turned out, but let me say that is an extremely risky strategy even if it might theoretically work. You would have be truly equal opportunity in your harassment and the court might still find that it is gender-based because of the disparate impact of the facially equal behavior. Bluntly, don’t try it.) And that is what we lawyers call quid pro quo, the promising of a benefit for saying “yes,” and/or retribution for saying “no.” And all of that sounds well and good, until you think for a moment of the supervisor who sent around this email comparing men and women to computers. This was the INS, but I think every person who works for a private employer knows how their company would react. There would be investigations, there would be recriminations, and there would very likely to be at the very least a warning to this employee… …for writing an email. In other words, for exercising his freedom of expression. Now of course a private employer can voluntarily choose to be as much of a prude as he or she wants. But this is not typically voluntary on the part of the company. This is, “you idiot, you’re going to get us sued, cut it out. ” Ordinarily when it comes to freedom of expression the court says that indefiniteness is intolerable. The courts speak of an impermissible “chilling effect” on protected speech when a law is vague. As Justice (Thurgood) Marshall wrote in Grayned v. Rockford: [W]here a vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked. (internal quotation marks removed) Now, let us take a moment to look at one of the seminal cases in sexual harassment, Meritor Savings v. Vinson. In it the Court drew the line between permissible speech and impermissible harassment. After explaining that the harassment must have the effect of altering a term, condition or privilege of employment, the court said: Of course, as the courts in both Rogers and Henson recognized, not all workplace conduct that may be described as “harassment” affects a “term, condition, or privilege” of employment within the meaning of Title VII. See Rogers v. EEOC, supra, at 238 (“mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” would not affect the conditions of employment to sufficiently significant degree to violate Title VII); Henson, 682 F. 2d, at 904 (quoting same). For sexual harassment to be actionable, it must be sufficiently severe or pervasive “to alter the conditions of [the victim's] employment and create an abusive working environment.” Ibid. Respondent’s allegations in this case — which include not only pervasive harassment but also criminal conduct of the most serious nature — are plainly sufficient to state a claim for “hostile environment” sexual harassment. Let me be blunt folks. There isn’t a lawyer in America that can tell you what exactly that language means. There are cases where the line has been pretty clearly crossed. For instance, Mechelle Vinson alleged that her supervisor actually raped her, so that is obviously sexual harassment. And indeed all quid pro harassment is almost automatically sexual harassment. But in the close cases, where the behavior is merely verbal or written, it is very hard to know where the line is. So the chilling effect takes effect. Employers often try to suppress any sexual discussion, at all, not because they wish to behave this way, but because of their rational fear of a lawsuit. And if you want to see how quickly freedom of speech gets thrown to the wayside, I suggest you read the Lyle v. Warner Brothers. It is known among employment lawyers as the “Friends case” because it grew out of the television show. Apparently the show is written by horny teenagers, judging by the behavior involved. The writers for the show would openly discuss their sexual experiences, brag about conquests, and even ask the plaintiff about how good she was in bed with her boyfriend. Now I am in the distinct minority among people, since I didn’t like the show. Mainly I liked their stories better the first time, when they were on Seinfeld and what wasn’t derivative was just annoying. So I don’t personally place too high a value on their speech. And the behavior they described among the writers is incredibly offensive. But, like it or not they are entitled to their crude, derivative speech, and while I am not absolutely certain that this conduct was necessary to their creative process, I think the courts are correct to err on the side of tolerance. So we should all breathe a sigh of relief that they won… …in the California Supreme Court. Which means they had to fight their way all the way up to that level in order to protect their right to “free” speech. Now it appears that they would be able to recover attorneys fees and court costs, but as the case was going, certainly their lawyers would have recognized that this was quite a gamble they were taking. I admire Warner Brothers and their lawyers for recognizing just how important it was to win this, and not merely settle the matter cheaply as they almost certainly could have. But how many others would simply fold and have their speech chilled as a result? And indeed the court still left open many avenues by which the show still could have been sued—just not on the facts before the court at the time. So I think sexual harassment law is in dire need of reform. Quid pro quo harassment can be left in place because it is conduct that is actually criminal in most states (as I keep saying, its solicitation of prostitution if unsuccessful, prostitution is successful). In terms of hostile environment I think the courts should draw a bright line: only conduct, and not mere words, can be harassment. Now I mean that as lawyers understand the term “conduct.” When two people form a contract, that is not considered speech, but conduct. The same is true of threats. So if you touch a person or threaten them, that is harassment that can be prohibited under the law. But not merely expressing an unpopular opinion. That is not to say I am okay with other crude comments, but we cannot ban everything that offends us—especially when that thing is merely words. Besides, most employers will not allow that kind of conduct if only because it is unprofessional. And again, if private companies wish to be prudish,* there is no constitutional problem with that. But the First Amendment says that Congress may not pass any law abridging freedom of speech or the press.** And as the Supreme Court has repeatedly said, the prohibitions of the Constitution do not apply merely to formal violations. The First Amendment does not merely prohibit laws that on their face state they are preventing expression, but laws that can be interpreted so that they have the same effect. It is not necessary in my mind to strike down the various Civil Rights Act that have by interpretation been extended to the point that they violate the First Amendment. Instead, it is only necessary that the courts stop interpreting them that way, recognizing that they were wrong to have extended the reach of the law that far. And I say all that recognizing that the harm engendered by the proposed change in rules will probably fall more on women, minorities, and even the disabled. I know from personal experience how harassment can rob you of your opportunities. The road to this standing violation of the First Amendment was paved with good intentions. But it cannot go on. ———————————- * Some of you will notice I am side-stepping the issue of how prudish public employers can be. That is because I am uncertain exactly how I feel about that. Perhaps I will write on this another day. ** Freedom of the press, in my opinion, encompasses every expression in written words, not just the institutional press. After all, the founders surely wished to protect Thomas Paine as much as the Pennsylvania Gazette. [Posted and authored by Aaron Worthing.]
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“Congress Shall Make No Law;” The Dark Side of Sexual Harassment Law
