"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Wednesday, April 5, 2017

On identity-specific criminal laws in general and criminal statutes allowing some adults, but not others, to have sex with minors

Is it bad for a teacher to have sex with his or her school students? Well, it is certainly a bad idea.

Is it criminal for an adult to have sex with a teenager?

In Alabama, the age of majority is, let's say, confusing - it is 18 for some actions (in recognition of the federal age of majority of 18), 19 for other actions, and 21 in general.

The age of consent to sex in Alabama is 16, which is under the age of majority - in other words, sex with a minor over the age of 16 in Alabama is not a crime.

  • Is it good law to allow adults to have sex with minors over the age of 16? 
  • Is it good policy? 
  • Do minors over the age of 16 understand the full consequences, in our modern society of having sex with an adult? 

I do not think so, as to all of these questions.

Yet, people of the State of Alabama apparently think otherwise, since their legal representatives enacted such laws.

At the same time, people of the State of Alabama made a crime for school personnel what it did not make a crime for anybody else - sex with a minor over the age of 16, but under the age of 19.

Such a crime is, under Alabama law, a B felony, and carries a punishment from 10 to 20 years in prison (and, of course, loss of rights to ever work in school).

Is it a good idea to make sex with a minor over the age of 16 a crime? 

My personal opinion - yes, it is.  Parents should be able to send their children to school, assured that the school protects their children from sexual predators, not exposes them to such predators.  Without such a statute, school will become a breeding ground for sexual predators.

Yet, my personal opinion is also that it is NOT a good idea to NOT make the same conduct a crime for everybody else - because it opens the door for challenges such as just was made in Alabama.

A former teacher is now challenging constitutionality of this "crime only for teachers" law on equal protection grounds.

Prosecution opposes the argument since discrimination is not based on "race, alienage or gender", simply on occupation.

Criminal laws, especially laws carrying such steep punishments as 10 to 20 years in prison, must be free of identity-classification.

If you are a school teacher, it is a crime for you to have sex with a MINOR (let's not forget that - the age of majority in Alabama is 19 to 21 depending on the issue).

If you do not work in school, it is not a crime for anybody else to, once again, have sex with a MINOR.

While trying to protect children in school from sexual predators, Alabama lawmakers failed sorely in protecting children from sexual predators out of school - where such predators are, likely, more difficult to detect, and that is not a good idea.

What states should do (my personal opinion) is TWO things:

1) prohibit identity-specific criminal prosecution of any kind, by a separate change of state Constitutions, if necessary - identity-specific criminal laws (it is a crime to do a certain thing if you are employed as an A, but not a B) are a bad idea, as such laws undermine people's perception and recognition of conduct as criminal, if it is criminal to some people, but not others; and

2) make the age of consent the same as the age of majority, otherwise it simply makes no sense.  No adult, anywhere, should be allowed to have sex with a minor, whether that adult is a teacher or not a teacher.

Such changes will not help in the particular case, one way or another, as laws do not work backwards, at least in criminal law, so the challenge will rise or fall on its own, whatever the Alabama Legislature may decide to do.

By the way, in the state of New York where I lived for 16 years and practiced law, there is also such a discrepancy:

  • the age of majority is 18 for most issues, 21 for cut off of child support, and
  • the age of consent is lower - 17, so it is lawful to have sex with a 17-year-old minor, which, again, makes no sense.

As to the result of this challenge, I will follow this case and report on the decision.

Stay tuned.

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