Don’t rape — a response to Scott Greenfield

Scott Greenfield wrote a post piggybacking on James Taranto’s column on rape. Taranto argued that women escape the consequences of their actions by being drunk. Greenfield went further, writing:

It strikes me that that avoids the thrust of the problem: “rape culture” holds that men rape women, and therefore men, and only men, are culpable.  In the extreme, feminist nutjobs contend that all sex is rape by men.  Less extreme is the view that consensual sex can occur, but is subject to post-coital regret.  If the woman decides afterward that it wasn’t a great idea, then what would have appeared to be consensual sex at the time becomes rape after the fact.

I have represented sex offenders, sometimes for the original offenses, sometimes for collateral matters like parole violations. My clients have done things that were legally defensible, but morally repugnant — the guy who leveraged his position as a supervisor to persuade a woman into consenting when she really didn’t want to. Some were very sad cases that were morally defensible, but legally indefensible — the developmentally disabled man who just couldn’t ever get why 10 year olds were off-limits, even though they were intellectually peers. Some, the rarest of the lot, are just plain evil — the man who refused his step-daughter her cancer treatments unless she serviced him is easily the most unabashedly evil person I have ever met, and I sleep well knowing that he will die of miserable old age in prison.

When I handle a sex case, there are two things I will not do — slut shame or victim blame. It’s reprehensible and has no place in the judicial process (I also note that no matter how many times I have seen it tried, it never works, but that is for another post). I get good results for my clients, fighting the cases that need fighting, working out the ones we can resolve, and I would like to think I do so fairly and respectfully.

I mention my history representing sex offenders because when I write what follows it is important to remember whose side I am on and what I do for a living — Taranto and Greenfield are wrong.

Despite Greenfield’s blaring fear quotes, rape culture is a real thing. It is different, however, from the kinds of sex offenses that get prosecuted, and different still from how both Greenfield and Taranto glibly describe it.

Sex offenses, as they have traditionally been classified under the law, are pathological. At one end, the offender who victimizes adults — specifically the rarest of the rare, the violent stranger attacker — pathologically seeks validation of his own power. At the other end — the child molester — pathologically seeks to be loved, hence the grooming, Jerry Sandusky style.

Rape culture, describes behaviors that society as a whole, and yes, men in particular, do that strips women of their agency in sexual decision making. Rape culture exists when a woman can’t walk down the street without being catcalled — not a crime, obviously, but definitely the result of a notion that woman are objects whose bodies exist solely for masculine enjoyment. In a much more dangerous sense, rape culture exists when police advise women not to dress like sluts. Rape culture exists when a judge can tell a woman that she brought her assault upon herself for being at a bar. Rape culture exists when we tell women that it is their responsibility not to get raped, rather than men’s responsibility not to rape — boys will be boys, and all that. In rape culture, it’s all perfectly normal.

In other words, rape culture describes all the ways in which society sexualizes women and removes their agency that are not considered pathological.

(It is probably also rape culture that the only way I feel safe saying this is that I am a middle aged white man who can’t be immediately dismissed as a “feminist nutjob” by virtue of my gender.)

This is not to say that there are no women sex offenders — the media loves to pounce on the Hot For Teacher cases in particular. This is a red herring, though, because cases involving women offenders are rare — in my home county there are 348 registered offenders on the Megan’s Law website, and only 5 are women. We also perversely celebrate women offenders — a few years ago, the Houston Press published a listicle of the ten hottest women on the sex offender registry.

So when Greenfield writes that rape culture renders women “such… delicate flower[s] that she is absolved of all personal responsibility for her choices” he gets it wrong. Women do not generally cry rape because they made a decision they regret, women cry rape when they have been raped.

20 or 25 years ago, date rape was not a crime, but nearly a rite of passage, so commonplace that it was seen as inevitable and universal. The codes of conduct and sexual assault policies now populating college campuses are an attempt at changing that, and if it seems that the pendulum has swung too far in the other direction, I am okay with that. The answer is never “don’t get raped,” but rather “don’t rape.”

It is one thing to say “don’t drink too much, because bad things can happen” and quite another to say “if you drink too much you deserve what happens to you.” There may be problems with the complainant’s testimony, there may be problems of proof, there may be a serious dispute as to whether one party genuinely believed consent was given, but the “crime of regret” is a bogeyman legend. It doesn’t exist.

Cop Theatre

On Super Bowl Sunday, Philip Seymour Hoffman died of an apparent heroin overdose.

Early this morning, the NYPD arrested four people suspected of dealing the dope that killed him.

Good job, NYPD! Now go arrest the dealers whose junk may or may not have caused all the overdoses among people who didn’t win an Oscar; people who weren’t famous, or rich, or white; people that, like Hoffman, died far too soon, but unlike him will not be memorialized with a New York Times obit, an outpouring of affection on twitter, or a spot in next year’s Oscars show during the annual tribute of other rich white people we lost.

Make sure you issue a press release on all those other busts among the dealers whose cut-by-fentanyl-corn-starch-and-rat-poison crap have decimated entire communities. Communities full of people whose deaths went unnoticed by everyone except those left standing; people whose deaths didn’t temporarily knock the Super Bowl to the second headline — on Super Bowl Sunday.

So go be big time crimefighters, NYPD, and go after all those other people and make sure you splash it across the front pages, and maybe I won’t think you are exploiting the name of Philip Seymour Hoffman just so that people will think you are DOING SOMETHING!

Bring all those other dealers to justice, give them the grand perp walk for the benefit of the cameras, show the world that you take the deaths of the meek and misfortunate just as seriously as you take the deaths of the grand and privileged.

Go ahead. We’ll wait.

#IBelieveDylanFarrow

Earlier today, Dylan Farrow, the daughter of Woody Allen and Mia Farrow, wrote an open letter describing the sexual assaults she endured at the hands of her father. The allegations first emerged in 1992, and while Mia Farrow won a custody battle that turned largely on the allegations, and while Connecticut prosecutors believed there was probable cause to pursue criminal charges, Woody Allen was never tried for the offenses.

In very stark and brutal terms, she writes:

Woody Allen took me by the hand and led me into a dim, closet-like attic on the second floor of our house. He told me to lay on my stomach and play with my brother’s electric train set. Then he sexually assaulted me. He talked to me while he did it, whispering that I was a good girl, that this was our secret, promising that we’d go to Paris and I’d be a star in his movies. I remember staring at that toy train, focusing on it as it traveled in its circle around the attic. To this day, I find it difficult to look at toy trains.

She would later endure years of mental anguish, cutting herself and suffering an eating disorder. He would go on to a few more Oscars.

It is hard to read Dylan Farrow’s story and not feel outrage. Shortly after the story broke, support started pouring in on Twitter, under a few different hashtags — #IStandWithDylan and #IBelieveDylanFarrow, to name a couple. Many of these tweets offer support and decry rape culture. A few, however, worry me:

 

It is the question I am asked most often about my job — How can you defend those people? The people asking the question usually mean child molesters and murderers, not the shoplifters and drunk drivers who make up most of cases at the moment.

How can I stand next to, and advocate for, some truly, maddeningly evil people? Because each and every single one of them has a right to be proven guilty.

Note how I phrased that, the right to be proven guilty. That is the presumption of innocence in its simplest form. Each person charged with a crime, grand or petty, has the right to tell the prosecution to prove their case.

So, yes, rape victims must prove their case, just the same as assault victims or theft victims. In the early 90s, however, detectives were leery of child sex cases — the McMartin case had just fallen apart, and the repressed memory cases were just coming up. In other words, investigators were conditioned by bad cases to view child sex victims with doubt, not compassion.

Attitudes toward sex crimes have changed considerably since 1992, and investigators are now better trained in dealing with child sex victims. The trials of Jerry Sandusky or the priests in Philadelphia demonstrate that prosecutors are not shy about taking on high profile defendants represented by big money lawyers. I do not doubt that if this had happened today Woody Allen would be stand trial.

And I do believe Dylan Farrow. Her story has remained consistent and it gains her nothing to repeat it. Hollywood, seat of a notoriously dirty business, has the money and power to make her life miserable yet again for going public.

Dylan Farrow wrote that prosecutors declined to go to files charges because of “the fragility of the ‘child victim,’” but one thing is absolutely clear — she is not fragile at all. She is the epitome of strength.

Stay classy, Norristown

Norristown, Pennsylvania just wants to do something about the crime. Compared to its neighbors, Norristown has a higher crime rate and is poorer. So it has gotten creative about its crime problems.

It kicks out the victims.

No, really. If a person calls for police assistance three times within four months, the town will force your landlord to evict you.

Read that again. Take your time. It’s that effed up.

Norristown’s “disorderly behavior” ordinance specifically includes “domestic disturbances” within its definition of “disorderly behavior,” meaning that someone went out of their way to make sure that domestic violence victims get the shaft here.

Which is how I learned about this little pile of nonsense.

Norristown resident Lakisha Briggs was assaulted by her paramour. A neighbor called the police, who arrested the boyfriend, and who then told Ms. Briggs that she was on Strike Three — they were going to force her landlord to evict her.

No crime victims? No crime! Boyfriend assault you? Don’t call the cops if you need, you know, a place to live!

The ACLU filed a Federal suit against Norristown on Ms. Briggs’ behalf, alleging that the ordinance violates the First Amendment right to petition the government.

And the Violence Against Women Act.

And the Fair Housing Act.

The ordinance punishes women whose only crime is needing help and is based on offensive stereotypes that blame the victim in domestic violence situations.

It also discriminates against the poor — the law applies to renters. If you own your own home, they can’t evict you, can they?

For its sake, the town responded by saying:

The new provisions of the Municipality’s Rental License Ordinance reflect the Municipality’s attempt to require landlords to assist in attempting to reduce incidences of disorderly behavior caused by tenants in the Municipality, which adversely affect the law-abiding citizens of Norristown.

The ordinance provision currently in effect contains all of the constitutional due process provisions required to protect the residents of Norristown, explicitly stating that no property shall be condemned for any reason under Norristown’s property maintenance code based on occurrences of disorderly behavior, and stating that no tenant shall be evicted or forced to vacate a rental dwelling for violation of the ordinance provision.

The ordinance provision allegedly being attacked by the lawsuit does not, in any way, discriminate against any persons, nor does it punish victims of domestic violence.

To which I say this:

No mas pantalones...

No mas pantalones…

The one in which nothing changes

Buried and ignored amid the news from Boston and Texas last week was a major SCOTUS decision on DUI procedure. In Missouri v. McNeely, the Justices decided 8 – 1 that the natural dissipation of alcohol in the blood is not, by itself, an “exigent circumstance.” This means that without some other factors in the individual case, police either need consent or a warrant to draw blood.

So why am I not more excited?

Because it will have no effect in Pennsylvania.

Pennsylvania has a unique DUI statute that makes the McNeely decision a dead letter. First, we have an implied consent statute if you have a driver’s license, and use our public highways, then you have already impliedly consented to blood alcohol content testing.

Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving [under the influence]. 75 Pa.C.S. §1547(a).

However, despite your implied consent, the police are not allowed to draw your blood without actual, in the moment consent — despite having impliedly consented, you can still refuse! So do they need a warrant now?

Nope — the implied consent law states that refusal is itself evidence:

In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3802 or any other violation of this title arising out of the same action, the fact that the defendant refused to submit to chemical testing as required by subsection (a) may be introduced in evidence along with other testimony concerning the circumstances of the refusal…  75 Pa.C.S. §1547(e)

The “other testimony concerning the circumstances of the refusal” can include the stink of gin all about the driver, and the fact that the driver drove himself into a bridge abutment.

It got driven into an abutment

The second factor here is the definition of DUI itself, coupled with our graduated penalty statute. Pennsylvania has two different definitions of DUI — General Impairment, and driving with a BAC in excess of 0.08%. The general impairment statute is relevant to our purposes:

An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle. 75 Pa.C.S. §3802(a)(1).

In other words, they only have to prove:

  1. that a person was in control of a vehicle
  2. after imbibing sufficient alcohol
  3. render him/her incapable of safe driving.

In practice, that comes down to the officer’s testimony. Driving is almost assumed. Imbibing is proved by the odor of alcohol and the refusal. Incapable of safe driving is proven by the bridge abutment.

So you can see that under the general impairment section, they don’t even need blood at all — never mind a warrant.

Now here’s the kicker — under the sentencing statute, DUI-General Impairment with a refusal is penalized at the highest level. DUI with a refusal is treated the same as DUI above 0.16% or DUI-Drugs. [The section is too long and broken into too many subsections to be quoted with clarity — follow the link if interested.]

So if a DUI suspect refuses to submit to BAC testing, the cop doesn’t simply draw blood, nor does he need a warrant — they’ve already got you at (effectively) the highest level, the level with the longest jail and longest license suspension.

So although it looks as though the law underwent a sea change, the truth is that it’s the same as it ever was.

Pennsylvania Legislature sorta gets something right, and something else vastly wrong, on teen sexting

Anyone who knows me is by now well aware that I am no fan of the General Assembly of Pennsylvania. After all, this is the august body that has prohibited the knowing, intentional, or reckless manufacture of a fake ID (how does one recklessly manufacture something?).

These are also the people who have decided that Simple Assault — beating someone up — is a Misdemeanor 2, punishable by up to two years in jail, while Terroristic Threats is a Misdemeanor 1, punishable by up to five years in jail. That’s right, threatening to beat someone up has a more severe penalty than actually beating someone up.

So as you can imagine, I do not expect too much from our elected representatives in Harrisburg. Bearing this in mind, I shuddered with fear when the General Assembly decided last year some time to address underage sexting.

The first sexting case in Pennsylvania involved a 17 year old girl in Wyoming County who had a nude picture of herself on her own cell phone, and she was charged with child pornography and dragged through juvenile court before the charge was dropped — and then sued the school district for the horrific invasion of her privacy.

THE NEW LAW

The new law, Act 198 of 2012, changes all that. No, sexting is not legal. However, it clarifies that:

  • A minor in possession of an image of him- or herself could only be charged with a summary offense, punishable by a fine.
  • If a minor sends an image of another minor to someone else, that minor faces a Misdemeanor 3 in juvenile court.
  • If the image is transmitted “with the intent to coerce, intimidate, torment, harass or otherwise cause emotional distress to another minor,” it becomes a Misdemeanor 2, again in juvenile court.
  • If the image is sexted to an adult, it remains child pornography (for the adult).
  • If the images depict sexual intercourse (or any other explicit act), it remains child pornography (for everyone involved).
  • If the image is created for commercial purposes, it remains child pornography (for whom, though is unclear).
  • If the minor depicted is under 12, it remains child porn.

There have already been a handful of kids cited under the new law.

WHAT THEY GOT RIGHT

The Act is a vast improvement for Pennsylvania’s teens. The Act recognizes that kids do not always make the best decisions when it comes to their sexuality, and it removes the threat of an overzealous DA pursuing felony sex offenses and a lifetime Megan’s Law registration for what is essentially the 21st century equivalent of skinnydipping.

Furthermore, the tiered penalty structure recognizes that sexting an image of oneself is vastly different from sending an image of another person to other people. It recognizes that some kids can use sexting images of others to bully their peers, particularly girls.

Finally, it makes clear that an image of a 12 year old, or one depicting a sex act, is not sexting. Those images are treated as under the old law.

WHAT THEY GOT WRONG

While the law is an improvement, it is not perfect. First, I don’t particularly think there should be ANY penalty for either the original sender or first recipient. That is a matter of privacy in my opinion. The second problem is only apparent if you know about Pennsylvania procedure, but reveals a vast mistake and lack of forethought on the Assembly’s part.

A summary offense is the lowest grade of offense there is. Even for adults, it is generally only punishable by a fine — in fact, if the Magisterial District Judge is even considering probation, the court must inform the defendant in advance because that triggers a right to counsel. So sexting an image of oneself is a very low grade offense and stays at the MDJ court.

The other new offenses — sexting an image of someone else — are misdemeanors, which are more serious and go to juvenile court. Here’s where the problem arises — because the summary offense is too low grade to go to juvie court, it remains a public record, with the minor’s name searchable on the UJS Portal database. The more serious offenses go to juvenile court, which are not public, and the records are sealed.

Think about that a second — because the self-sexting is essentially a private act, it goes to a court where records are public; but where the image is forwarded and the privacy of the self-sexter is violated, that goes to a secret court with sealed records, and the privacy of those kids is protected.

Got it? Me neither.

THE FINAL ANALYSIS

On the whole, it is a step in the right direction, but only a step. While the law recognizes that sexting is not the same as child porn, it still punishes kids a little too harshly for what is, frankly, a purely private act. I specifically like that sexting for the purpose of causing distress is treated more seriously than other kinds of sexting, but I very specifically dislike public nature of the summary offense.

One other thing about this law, that is sure to get kids to stop. If they are convicted, the Commonwealth gets to keep their phones. Now that is a major punishment for a kid.

Cops lie

A few times a month, I get a call from someone who was busted for a relatively minor offense — DUI or drug possession, for example — and are being pressured by the police to “cooperate.” Cooperate, of course, is cop-speak for “snitch.” The police suggest, insinuate, or just flat say that if you help (usually by doing a few controlled purchases), they won’t file charges.

Don’t fall for it. They’re not allowed to do that.

The law in Pennsylvania has been clear on this point for almost 20 years — police are not allowed to cut their own deals, but there is no penalty to the police if they do so. Let me explain.

The lead case in this area is Commonwealth v. Stipetich. In 1990, police in Pittsburgh raided a home. The search turned up small amounts of drugs, so the police offered the homeowners a deal — give up the source of the drugs, and we won’t prosecute you. The homeowners agreed, worked out a deal with the police, and gave up the dealers.

And then the police filed charges anyway.

The homeowners filed a motion to dismiss, basically seeking to enforce the deal they worked out. The trial court granted the motion and dismissed the case. The Commonwealth appealed, and the case made its way to the Supreme Court of Pennsylvania. The Supreme Court held that the “deal” was unenforceable because only the DA can make a decision not to prosecute — and reinstated the complaint.

That’s right — the police made a deal they had no right to make. The DA prosecuted anyway because the police cannot bind the DA to any deal. And the Court says the prosecution is okay.

Meaning that accused defendants get the shaft.

So when a cop tries to “work something out” with you, when a cop tells you that he’ll “help you out” if you cooperate, when a cop says he’ll “go easy on you” if you snitch, just remember this: that cop is lying. He is doing something he is not allowed to do. He can get the info from you, and then file a complaint anyway.

And he will never get in trouble for it.

But what is the crime?

A man was arrested in Delaware County, it would seem, for asking to take pictures of underage girls. Not for forcing them to, nor even for taking their pictures surreptitiously from a block away with a super-telephoto-mega-zoom-upskirt-shot lens.

He was arrested for asking them to.

So I read the article and am even more confused (c’mon, Delco Daily Times — you can at least list the charges). I looked at the docket sheet, and the charges are in fact Simple Assault, Stalking, and Harassment. They’ve charged assault presumably because he touched the girl’s arm and tried to hug them. Okay, that’s a summary harassment, but it’s not really an assault. So what gives?

He was arrested because he was being creepy, which last time I checked was no crime. But he is a convicted sex offender. As I have come to learn, the system comes down extra tough on sex offenders. In this instance, he asked to take pictures. But that was enough, apparently, to lock him up.

Main Line Today Top Lawyer 2012

It is with great pride that I announce that I have been selected as a Main Line Today Top Lawyer for 2012. Without seeking out the recognition, I am now considered one of the best criminal defense and DUI lawyers in the Western Suburbs of Philadelphia. The other names on that list are all top shelf, and I am proud to be counted among them.

This is the culmination of years of hard work and dedicated professional development. I am humbled and grateful for all the help I have received along the way from mentors, loved ones, dear friends, and (yes) clients that have helped mold me into the lawyer I am today. Some would say that I should probably increase my fees or get a bigger office (or flashier car) as a result of making this list. I won’t do any of that — I didn’t get to be where I am by putting my ego ahead of my clients, and I won’t stay there if I do those things now. I will continue to provide excellent representation to my clients, with a focus on affordability and professionalism.

So thank you all for helping me get where I am. I look forward to continued growth and improvement in the future.

The Coach & The Monsignor

Unless you spent the entire weekend at a spiritual retreat devoid of media you have by now learned that Jerry Sandusky was convicted of 45 counts of child sex offenses. He was immediately locked up following the verdict, and was led away in handcuffs to the Centre County jail, where he now sits awaiting sentence. The scene outside the courthouse was chaotic, with people cheering and grinning fools giving bizarre statements they should never have given.

What got buried in the mountain of Sandusky was the verdict in the Philadelphia Archdiocese sex case earlier that day. Monsignor William Lynn was convicted of Endangering Welfare of Children for covering up abuse, and shuffling abusive priests from parish to parish. Despite securing this one conviction the outcome fo this trial was largely a loss for the Philly DA’s Office. Lynn’s co-defendant, Father James Brennan, skated on the abuse charges themselves. Lynn was only convicted  of one count as it related to a different priest who had pled guilty.

Forty-five convictions, and a likely life sentence in one case. Three months of trial, twelve days of deliberation, and only one conviction in the other. Both cases involved large (and beloved) institutions, one of which was religious, the other a church. So what made the difference?

The lawyers.

Sandusky’s lawyer, Joe Amendola has proven himself to be out of his depth from the start. Days after the arrest, Amendola allowed Bob Costas to interview Sandusky, who asked Sandusky point blank “Are you sexually attracted to young boys?” The answer: “I enjoy young people.” Apparently not having learned his lesson, Amendola allowed a second interview, this time to the New York Times, who asked him essentially the same thing, and Sandusky gave essentially the same unsatisfactory answer (in this circumstance, anything less than a fervent and vitriolic “NO!” is damning).

Amendola (and co-counsel Karl Rominger) tried to get out of the case on the morning of jury selection, claiming to be unprepared. This fact is infuriating, because this case was specially scheduled from the start, with both sides given a date certain for trial. Was there a lot of discovery to go through? Yes. Most criminal cases generate discovery of no more than 50 pages, but this case had thousands. You know what, Amendola? You do the work. They didn’t. At the very least, it seems that Amendola is prepared to admit that he did a lousy job. His candor gets no praise from me, however.

On the other side of the case, the Pennsylvania Attorney General’s Office sent their best lawyers to do their best work. They were prepared, they were ready, and they relied on their witnesses to tell their stories. They kept it simple, focusing on what happened to these boys, and not the circus that surrounded Saint Joseph of Paterno and his followers.

In the Archdiocese case, the roles were reversed. The prosecution overreached, and the defense stood tough. The defense in the Archdiocese case are all top shelf, serious, and experienced criminal defense lawyers. I would like to pull up as many links or videos to them (or their clients) giving statements to the press, but I can’t. They kept their mouths shut. No one said anything. And no one gets in trouble for the things one doesn’t say.

On the other hand, the prosecution bit off more than they could chew. By focusing on the institutional coverup, the DA turned what could have been a compelling case of horrendous wrongdoing, and instead turned it into a pile of documents — memos about which priest goes where, what the Archbishop knew, and who said what to whom. It became, in effect, a massive conspiracy.

Conspiracies, particularly years-long, high-level institutional conspiracies, are a very hard sell for jurors. Jurors know from personal experience how hard it is to get five people to agree on lunch, let alone hundreds to agree on covering up an epidemic of sexual abuse. The bigger and higher the conspiracy, the more serious the allegations, the less likely a person is to believe it — and the more likely the person describing it will sound like a tin-hat wearing conspiracy theorist, a Spooky Mulder sitting in his basement office staring at his “I Want To Believe” poster.

The first and most basic decision a trial lawyer must make is very often also the most important — what is we are trying to convey to the jury? Is the case a an assault or a coverup? Is the defense that he is completely innocent or that things didn’t happen the way the Commonwealth claims? In the Sandusky case, the AGs decided to make the case about the boys, and not about Penn State football, while Amendola decided to make the case about himself. In the Archdiocese case, the DAs decided to make the case about the coverup, while the defense shifted the focus as much as possible to the individual priests and away from the institution.

In these cases, four sets of lawyers — two prosecutors, two defenders, three of whom were up to the task, one most definitely not — approached very similar circumstances in very different ways, and that made all the difference.