Forum Overview :: Tansin A. Darcos's Alter Ego :: Well, there is a difference here

[quote name="Tansin A. Darcos (TDARCOS)"][quote name="Horrible Gelatinous Blob"]I just wanted to reiterate how wrong you are and tell you that if you take a moment to think about it, you'll understand why sex cannot qualify as "services" or "something of value" under the law. If you don't see why classifying sex as a service with inherent monetary value that is easily exchanged for property is wrong, then you have to hold the opinion that rape is a property crime, not a violation of personal autonomy. That's the line of thinking that leads to the old misogynist saw that prostitutes can't be raped; there can only be theft of services.[/quote] You don't seem to understand. The rule for criminal prosecution requires that the crime as set forth comply with the provisions of the statute stating the act and conditions that define what is prohibited. Unless the action falls within the terms of the statute the action is not a crime. Therefore I am trying to say, how do you define the particular actions so they represent an action that is prohibited by the statute? So, if you're a prosecutor you argue that the person's labor, or services, have been taken, or that something of value was taken, thus the action then complies with the statute and is in violation. I'm not trying to argue that rape in this particular case is a property crime, it's that by defining it in the manner required by the statute that it then violates the law. That's all. That is the job of a prosecutor when someone violates someone else's rights that they, to the best of their ability, find a method of describing the crime that fits the statute and is compatible with it. The South Dakota Supreme Court threw out the conviction of an American Aborigine ("Indian") for the crime of "robbery from a building" in which, they charged the kid, for stealing something from a store, not with misdemeanor shoplifting, but with the felony crime equivalent to burglary. The court chided the prosecutor for overcharging the offense (and probably for doing it because the perpetrator was from an Indian reservation as opposed to being white.) The courts have ruled that a law must be read as written, that the legislature wrote it the way they did because they knew what they wanted to say, that every word in the statute is there for a reason, that the legislature knows all of the related court cases about the subject, and if a word is missing it's because they wanted it that way. Most of these assumptions are probably insanity but that's the way the law works. The statute is read as is written and if it fits the behavior then it's a crime; if it does not fit then it is not. All that a prosecutor has to charge a crime is the statutes as written, subject to qualifiers and exceptions set by either the state or (in rare cases) Federal courts. If the statute prohibits something but the Supreme Court of that state has excluded the particular case you have, that's it, you can't prosecute the case. So you then have to find something else to charge them with, presuming there is anything else. A prosecutor has to fit the crimes to the statute, and sometimes it means you use creative methods to argue something differently than your own opinions or even what you think the person should be charged. Or in some cases because you have no choice. I've been in court in Virginia a number of times over traffic offenses, and you find that, over and over and over again, everyone that gets arrested for a speeding ticket is ticketed for driving 19 miles over the speed limit. Everybody caught on the freeway where it was 55 was always driving no more than 74 miles an hour. What you have to know is that the state troopers have no choice, if a guy's just speeding and that's all, the trooper probably wants to write the guy up at whatever speed it was, 75 or 80, but they can't. In Virginia, traveling 20 or more miles over the speed limit is automatically reckless driving. Now, if a guy is moving with traffic or a little faster and he's not making unusual lane changes, or otherwise driving erratically, doing 75 or even 80 in a 55 isn't reckless, but if the trooper writes him for that speed, under the law it is. So the trooper doesn't have a choice and writes the guy up for doing 74, the maximum that is less than reckless driving. My guess is now where the speed limit is higher they're writing everybody for no more than doing 79 in a 65 for a similar reason (only 14 miles per hour more), because in Virginia it's also reckless driving to drive 80 or more miles per hour. [quote name="Horrible Gelatinous Blob"]Consider Wyoming's blackmail statute:[quote]§ 6-2-402. Blackmail; aggravated blackmail; penalties. (a) A person commits blackmail if, with the intent to obtain property of another <b>or to compel action or inaction by any person against his will</b>, the person: (i) Threatens bodily injury or injury to the property of another person; or (ii) Accuses or threatens to accuse a person of a crime or immoral conduct which would tend to degrade or disgrace the person or subject him to the ridicule or contempt of society. (b) Except as provided in subsection (c) of this section, blackmail is a felony punishable by imprisonment for not more than ten (10) years. [/quote] You see how that's separated out from property? You see how broad "compel action or inaction by any person against his will" is? Nothing in how this statute is verbally constructed is there by happenstance. You're right in that this hypo would probably be covered under Wyoming's blackmail statute (assuming it's not too broad), but contrast this to all of the other extortion statutes.[/quote] Since the case you pointed me to was from Montana, let's see what their statute says. Montana does not have a direct blackmail or extortion statute, but it does have an Involuntary Servitude statute that defines blackmail: 45-5-305. Subjecting another to involuntary servitude -- definitions. (1) A person commits the offense of subjecting another to involuntary servitude if the person purposely or knowingly obtains or maintains the forced labor or services of another person by any of the following actions or by threatening any of the following actions: (a) causing physical harm to any person; (b) damaging or destroying the property of any person; (c) physically restraining another person; (d) abusing the law or legal process; (e) knowingly destroying, concealing, removing, confiscating, or possessing any actual or purported passport or other immigration document or any other actual or purported government identification document of another person; (f) blackmail; or (g) causing financial harm to any person or using financial control over any person. (2) (a) Except as provided in subsection (2)(b), a person convicted of the offense of subjecting another to involuntary servitude shall be imprisoned in the state prison for a term of not more than 10 years, fined an amount not to exceed $50,000, or both. (b) A person convicted of the offense of subjecting another to involuntary servitude, if the violation involves aggravated kidnapping, sexual intercourse without consent, or deliberate homicide, shall be punished by life imprisonment or by imprisonment in the state prison for a term of not more than 100 years and may be fined not more than $50,000. (3) As used in this section, the following definitions apply: (a) "Blackmail" means an unlawful demand of money, property, or services under threat to accuse another person of a crime or to expose any secret tending to subject a person to hatred, contempt, or ridicule. (b) "Financial harm" includes employment contracts that violate 28-2-903, taking, receiving, reserving, or charging a rate of interest greater than is allowed by 31-1-107, and defrauding creditors as defined in 45-6-315. (c) "Forced labor or services" means labor or services that are performed or provided by another person and are obtained or maintained through violation of subsection (1). (d) "Labor" means work of economic or financial value. (e) "Maintain" means to secure continued performance of labor or services, regardless of any initial agreement on the part of the victim to perform that type of service. (f) "Obtain" means to secure performance of labor or services. (g) "Services" means an ongoing relationship between a person and the offender in which the person performs activities under the supervision of or for the benefit of the offender, including commercial sexual activity and sexually explicit performances. There might be enough stretch here to use the definition of blackmail to charge him with involuntary servitude. This is one of the reasons a good prosecutor throws everything that is reasonably related to the offense so that something will stick. This might be an overcharge but when you have statutes that probably haven't been updated since before I was born you do what you can with what you have. It might be arguable that he blackmailed her into a sexually explicit performance (and maybe you argue that the <i>quid-pro-quo</i> of requiring her to have sex in exchange for not being reported to ICE might be "commercial sexual activity." (You go to your case books or Lexus-Nexis and see if you can find a case where someone squeezed them into the statute if you can find it.) [quote name="Horrible Gelatinous Blob"]They focus on wrongful gain of property or labor that would normally be paid for by property. What does this tell you about the definition of extortion? What does this tell you about the definition of blackmail? Are they interchangeable? [/quote] I think the inclusion of a threat of reporting a crime in both cases makes them close enough for the purposes we're arguing here. That the Extortion cases mean you have to argue the issue as a property case is a result of the law not covering all the circumstances where misconduct injures someone else or maybe needs to be revised to properly cover such forms of misconduct. [quote name="Horrible Gelatinous Blob"]The point of this was to think about the lines between threats and offers and how thin they can be. It's legal for the principal to turn in (or refuse to turn in) the student, it's legal for the principal to ask the student for sex, but it's not legal to connect the two under any circumstance? What if he asks for sex, she says no, and then he picks up the phone and dials ICE? If she then offers sex so that he'll hang up, is it rape?[/quote] Presuming she thinks of it. Actually, in some places they cover this by making student-teacher or student-administrator sex a crime unless the two are married. When there is an element of control involved the possibility of abuse of authority can lead to nasty incidents like this. [quote name="Horrible Gelatinous Blob"] You've got a super-rigid worldview and you insist on concrete answers,[/quote] In the case of criminal conduct or alleged criminal conduct that is the only way you can look at the incident. If you're a prosecutor, you can only charge someone for a crime if the action of the person violates a statute. It must <i>exactly</i> violate it, if it fails to meet all the elements then you either get a dismissal (as was the case you cited), or the appeals court overturns the conviction. Let's give an example. I go out and meet some nice girl who just turned 16. I take her out and impress her, then take her back to a motel room and we have some hot, wicked sex. Probably <i>very</i> wicked since my disability means I can't put weight on my knees it means she has to be on top. Her mother finds out and is so outraged she wants me prosecuted for statutory rape. The prosecutor has to try to calm her down and explain to her that in Maryland the age of consent is 16 and as long as her daughter consented there's not a damn thing he can do. Next time get me to take her to a motel in Virginia where the age of consent is 18, that's about the only way she could get me prosecuted. If she had been 3 days younger and still 15, they could nail my ass to the wall, but they can't do anything. [quote name="Horrible Gelatinous Blob"] but for a multitude of reasons it's not always so simple. Look past the hypo and think about the larger social implications of your choice.[/quote] I think punishing "consent by extortion" or "consent by blackmail" is a benefit to society. <a href="http://law.justia.com/cases/montana/supreme-court/1990/773d64d9-24fb-4cb9-853b-1edcce7ad508.html">The case that the original hypo was based on.</a>[/quote] In the Thompson case you cited, the problem being with the statute is exactly the one I referred to in the case of Maryland. The statute for rape here requires force without consent. The court in this case read the statute and came to the conclusion that the "force" needed refers to violent force. Wyoming Statute 45-5-501. Definitions. (1) (a) As used in 45-5-503, the term "without consent" means: (i) the victim is compelled to submit by force against the victim or another; ... (2) As used in subsection (1), the term "force" means: (a) the infliction, attempted infliction, or threatened infliction of bodily injury or the commission of a forcible felony by the offender; or (b) the threat of substantial retaliatory action that causes the victim to reasonably believe that the offender has the ability to execute the threat. Wyoming Statute 45-5-503. Sexual intercourse without consent. (1) A person who knowingly has sexual intercourse without consent with another person commits the offense of sexual intercourse without consent. 503 doesn't define "without consent" but 501 does and says it has to include force, then defines "force". Since the statute here defines force and says it has to be related to something causing bodily injury the court did the only thing it could do, which was to affirm the dismissal of the charges because the statute fails to include force involving mental distress or anything else that happened in the case. Since the law in this case requires bodily injury or the threat of same to the victim, the crime as charged fails to meet the requirements of the statute. The courts have to follow the exact wording of a statute when charging someone with a crime. Unless their conduct hits every one of the prohibitions required by the statute the person has not violated the statute. As the court noted, if the affidavit charging a crime fails to meet the requirements of the statute, the trial court does not have jurisdiction to try the case. What usually happens in cases like this is that people get mad about this and demand the laws be changed, or the legislators decide on their own to rewrite the laws to close the loophole. This is where the laws get changed to cover various forms of misconduct where they were inadequate before. In this case the perpetrator doesn't get punished but usually such conduct, if egregious, now becomes punishable. A while ago a guy was involved in an accident, where someone got killed. So he got a traffic ticket for the accident. He paid it. Later they decide to try the guy for vehicular homicide. He gets convicted. Maryland's Court of Appeals threw out his conviction, because once he was ticketed for the accident that was the offense he had committed and had been convicted (by paying the fine) for. He could not then be subjected to additional criminal penalties because it violates the Federal 5th Amendment (and the state's equivalent) prohibition against double jeopardy. As a result of this the state police stopped writing tickets in accidents when there was a serious injury until after it was determined if the victim might die, in which case the driver can be indicted or an information filed. If nothing serious does happen, they can always go back and cite the driver for the accident, but once they do they can't charge him with anything else related to it. [/quote]