My purpose to starting this topic is that I am incredibly outraged that a tweet carries a harsher crime than two youths sexually violating another youth.
False claim... sentencing has yet to be issued:
from your cited article:
Attorneys for the attackers asked a Jefferson District Court judge to hold Dietrich in contempt for lashing out on Twitter. She could face up to 180 days in jail and a $500 fine if convicted. The boys have yet to be sentenced for the August 2011 attack.
I agree with Jon.Kiparsky on the level of what constitutes laws, and how laws should be formed.
I also don't know why a gag order was included in the plea bargain; those details are unknown to me. But Jon's example of the 16 and 15 year old couple is a bad example, because the details we DO know already show that it's a higher order of crime. And our crimes have spectrums of sentencing boundaries and degrees of the crimes to allow District Attorney's (when selecting the degree of the charge) and Judges (to decide the severity of sentencing within the margins to the degree of charge) to use relative judgement... including "personal judgement". For all I know the Judge may have had their reasons to include the gag order, but we could also assume there was corruption at play, or even just general ignorance on part of the Judge. We don't have those details.
The girl also has her own judgement to cast as well. If she felt her lawyer was not successfully fighting for what she considered her right to freedom of speech, and understood the consequences, then I say good on her for using what she considers her rights. She understood her consequences and was willing to stand up against them, in an effort to alter the playing field. This is how new law is formed... for better or for worse. So good on her. But I'm not here to debate what new laws may arise from that, I don't know, those details are not available to us.
I'm very pro people fighting [see: breaking the law] for what they think are their rights. Many laws have existed over time that were bad laws, and breaking those laws plays a role in getting rid of those laws. And don't give me none of that proper legislative process... breaking stupid laws helps bring awareness to the stupidity of that law. And if it's not a stupid law, it reinforces why it's not a stupid law. (yes this may be the Black version of Godwin's law but...) Rosa Park's broke the law... was that good or bad? Cause as far as I can tell, that was an effective tactic in the battle against bad law. Normal legislation wasn't doing what the civil rights movement was trying to accomplish with out a few law breakers on the streets pointing out the stupid laws.
This post has been edited by lordofduct: 23 July 2012 - 09:56 AM
But Jon's example of the 16 and 15 year old couple is a bad example, because the details we DO know already show that it's a higher order of crime.
That's exactly why I chose that example. To any sensible person, it's a very different crime, but to the law they're very much the same, and changing the way we handle one will necessarily change the way we handle the other.
The trouble is that what's obvious when you're examining two cases becomes much less obvious when you're trying to write good abstractions to cover the whole domain of the problem.
Gosh, writing law starts to look like programming.
Otherwise, totally agree.
This post has been edited by jon.kiparsky: 23 July 2012 - 10:04 AM
My point for bring that up is that the law does see them as very different crimes.
That's why crimes have varying degrees (for DA's to select from), as well as the Judge has a varying range to select from for sentencing. Why else do you think a crime is usually described as "from N1 to N2 years and/or N3 to N4 dollars in fines/fees". It's the law recognizing that not all crimes that fall under a specific crime are equal, and allow DA's and Judges to apply relative/personal judgement pertaining to that specific case.
My point for bring that up is that the law does see them as very different crimes.
I would call them different in degree, but not in nature - and since the nature of the crime is what we're concerned with, I think these are close enough to present a problem for any attempt to parse these based on raw emotional response.
However, I think I may be entering "quibbling" territory here. If my example doesn't work for you, I guess I can live with that.
This post has been edited by jon.kiparsky: 23 July 2012 - 10:46 AM
The difference between the two is the statutory modifier of rape. The minor was consenting in spirit, but isn't old enough to be consenting in the eyes of the law. I think the legitimate uses of a statutory rape clause, and the way it is most often used, can be pretty far apart, but that's not pertinent in this case. This case involved an unwilling victim and two perpetrators found to be of sound mind (that's an assumption, but I feel like it's a fair assumption). That is precisely why there are legal qualifiers to crimes, like "statutory" or "involuntary." So that's why I struggle with your example. However, in the end, conviction of either crime makes you a sex offender, so maybe it's not too far off. As for the raw emotional response, I do see a difference. If my daughter decides, when she's 16, to screw some 19 year old college kid, I'd be satisfied with nailing him in the junk (a few times), and then sending him off with a semi-empty threat. I think that even calling that "rape" is wrong, because to me it cheapens what rape really is. But this debate isn't about whether or not policy should change, but the application of the existing policy, so I guess that's moot.
They are different "in nature" according to the law. Hence the different crimes for each. Statutory rape is not aggravated rape is not "misdemeanor voyeurism" (whatever the fuck that is).
The law understands the difference, and the law has different degrees of punishment for them and treats them differently. Your initial claim was that the law doesn't recognize a difference, so you can't say you should alter the law based on emotional attachment. I agree with the latter, but it has nothing to do with law not recognizing the difference... because it most certainly does.
Though of course there is some categorizing going on. And something can easily bleed lines and become labeled a less heinous or more heinous crime emotionally due to technicalities. But that's not built into our law on purpose, just some laws are harder to write more precisely with out becoming beuracratic cluster fucks. This is why we have judges and DAs to weigh in personsal/relative judgement. This is also why we revise our laws... for instance the hot debate about in some states a 16 year old sleeping with a 15 year could be convicted for a crime equal to a 26 year old sleeping with a 6 year old. And I feel like that might have been the analogy you were shooting for...
Oh and heh... I had to look up the "Columbo" reference. Weird, and I like Peter Falk in several films...
This post has been edited by lordofduct: 23 July 2012 - 11:45 AM
The difference between the two is the statutory modifier of rape. The minor was consenting in spirit, but isn't old enough to be consenting in the eyes of the law.
But this is not what "statutory" means. Statutory rape is a case where sexual activity is by definition rape because the victim - and they are a victim by law - is not legally competent to consent. That means that whether they would consent or not is irrelevant - once the case gets into a court, the act is a crime by legal definition, if not in the eyes of anyone in the courtroom.
The case you're describing - the Romeo and Juliet case, we could call it - is one possible scenario, and it's the one we like to think of.
We could also consider the case of a minor assaulted by a person in her family and authority figure, someone who can get her to shut up and say yes. We do not want to be forced to assume that her consent is voluntary, and the only way to do that is to declare it inadmissible.
The point is, if the case were as you describe then statutory rape laws would simply be off the books, since the latter case is the primary justification for keeping them on the books. Nobody really gives a damn about Jimmy and Jenny and what they do in Jimmy's car, and certainly nobody wants to spend a minute or a nickel to prosecute them for it. If you could neatly separate the Romeo and Juliets from the fouler cases, legally speaking, then they would certainly be separated and statutory rape would be a weird historical curiosity.
Even so, statutory rape is still a different crime from aggravated rape.
All you've proven is that hannibal's laymen definition of 'statutory rape' wasn't accurate enough to your liking.
But it still highlighted the difference between rape and statutory rape. It's statutory rape when the victim is considered incapable of consenting (in the laymen defintion hannibal used, the victim is a minor, and the minor by law is considered incapable of consenting).
And that's the point. Rape is not "grabbing someone in an alley and sticking a knife to their throat so you can have sex with them". Rape is an instance of sexual activity (scope of activity included is a separate part of the definition) without consent of all involved parties.
It was not a civil document, but the Antioch Code from the 90s makes this point clearly: not only must you have consent, but consent to one act does not imply consent to any other act - this is why you had this set of gradations which were so broadly (and wrongly) mocked at the time. The point was not that you had a checklist by your bed, the point was that any sexual act, not consented to, constituted rape under that code.
With this in mind, it's simply impossible to make a sensible distinction between the reasons for lack of consent, in the abstract.
The varying degrees exist to provide some leeway and some guidance to the prosecution and the judge for particular cases, but it would be ridiculous to try to say that "if the crime is rape, then certain victims have legal leeway to take personal revenge in certain ways, the details of which will be determined by popular vote based on the particular circumstances at hand". Which is more or less the thrust of this thread, and what I was objecting to.
And I'd probably better leave it there for now, since I have a mountain of workflows to straighten up and write test cases for. If there's anything to respond to, I'll try to pick it up later on.
I think the legitimate uses of a statutory rape clause, and the way it is most often used, can be pretty far apart, but that's not pertinent in this case.
That is the discrepancy I was trying to point out with this statement (I guess the connotative vs denotative understandings of the term). I realize that my layman's definition of statutory rape falls well short, although the actual term statutory rape is not all that common. There are plenty of other legal terms to fill in that gray area ( "sexual assault", "rape of a child", "corruption of a minor", "carnal knowledge of a minor", "unlawful carnal knowledge", or simply "carnal knowledge" cite), which help to alleviate the discrepancy between consenting relationships and abuse of authority over a minor.
Jon, I agree with your premise that what she did was illegal and therefore she is subject to the consequences, whether or not the law is wrong. My concern is this: she didn't have a choice regarding her name (and her naked body) being made public when the rapists showed pictures of her and told people about it. In this case, I'd be interested to see if "misdemeanor voyeurism" (which I assume was the charge for showing those pictures) carries the same punishment as breaking a gag order. I bet it doesn't.