New York Governor Andrew Cuomo just announced, with much fanfare, that he had signed a bill to end child marriage in New York.
Now the age of consent to marriage is 18 only, marriages of minors under the age of 17 are prohibited, and between 17 and 18 are done only based on changed procedure of obtaining parental and judicial consent.
The legislation, the way it was passed, creates bizarre problems though.
In New York, the age of consent to have sex is 17.
And, minors in New York under the age of 17 can be charged with a sex crime and prosecuted by adults - and even the recent bill also signed by Cuomo with much fanfare, that raised criminal responsibility for non-violent crimes up to 18 years of age - did not change that.
Moreover, even under the current age of criminal responsibility for violent crimes - 14 years old - minors as young as 8 can be charged for a sex crime through a juvenile delinquency proceeding.
I remember that in a criminal case I represented, a #JudgeJohnFLambert, assigned to Delaware County Court) considered against a criminal defendant, over my objection, the alleged "sexual offense" committed by a sex offender at the age of 6 (!) - with no proof of it whatsoever, simply on a hearsay allegation of probation department.
In fact, Delaware County was proud of treating "sex offenders" that it kept in foster care - which means they were minors, likely under the age of consent to have sex. Since the treatment was experimental, and Delaware County did not provide to me, up to this day, on my FOIL requests, any records that a proper formal procedure was followed to secure such experimental treatment for minors, such "treatment" was unlawful experimentation on minors.
So, let's reiterate what is the situation with sex and marriage in regards to minors in New York:
1) a minor as young as 6 years of age can be considered a "sex offender" for purposes of future calculation of a sex offender risk as an adult - while being 11 years under the state's age of consent to sex, meaning that any sexual acts that such a child engages in are PRESUMED BY LAW to be involuntary;
2) a minor as young as 8 can be charged with a sex crime through a juvenile delinquency proceeding - while being 9 years under the age of consent, meaning that any sexual acts that such a child engages in are PRESUMED BY LAW to be involuntary;
moreover, there is a possibility that such a child, as the self-report of the former Delaware County Attorney Porter Kirkwood indicated, is then forcibly "treated" as a "sex offender" - which includes manipulations with his erection patterns, thus "treatment" in itself constitutes unlawful experimentation on human subjects and sexual child abuse;
3) a minor as young as 14 can be charged and convicted as an adult for a criminal sexual offense - while, once again, being under the age of consent, and while all of his acts charged against him as a crime, are presumed to be involuntary under the state law;
4) the age of consent to have sex is 17;
5) but, the age to consent to marriage is now 18?
So, a 14-year-old can understand what he is doing enough to be charged with a FELONY RAPE AS AN ADULT, but does not have enough understanding to marry if he sires a child on another teenager?
New York needs to bring consistency into its sex offender laws.
If 18 is the age of majority, it has to be the age of majority for ALL PURPOSES, including for criminal liability for violent crimes.
If sex with a minor is statutory rape, it should be statutory rape with a minor under the age of 18, not 17.
If sex with a minor is statutory rape, a minor cannot be charged with a sex crime - either in juvenile delinquency proceeding, or in a criminal proceeding, nor can alleged sexual "misbehavior" of a minor be used against him in criminal or civil proceeding when he or she becomes an adult - because under the law, there is no such thing as sexual mis-behavior of a minor, sexual acts of minors are not VOLUNTARY under the statutory law.
As the bill exists now, it makes no sense.
Not only it is not accompanied by raising the age of criminal responsibility and prohibition to charge or prosecute minors for sex crimes.
It also infringes on constitutional rights of minors to marry, based on the current age of consent to have sex in New York at the age of 17.
The right to marry is a basic human right, and a constitutional right in the U.S.
While the state can regulate such rights to ensure health and safety of its residents, regulating the way New York did - allowing minors, by its criminal laws, to have sex at 17, but disallowing 17-year-olds to enter into marriage without consent of parents or the court at the age of consent, makes no sense to me.
THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"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.
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