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Post by Draxy on Nov 6, 2003 10:12:01 GMT -5
Hi Hussar,
That is unfortunately incorrect. There are many laws that say you can do that, but not in this, or that case.
For instance: Gun ownership is pretty much a universal example of you can do that, but not if you have such and such a type of criminal record, or are of such and such an age, et al.
Laws concerning the voluntary release of the right to govern your own affairs for reason of mental inability, of which the Baker Act is only one of the most famous, are intentionally written VERY loose, with almost nothing but room for interpretation. Believe me, I've edited courses on psych related law in the past and where medical issues are at the fore, they are almost (almost) all VERY loosely designed.
Of course "invasion of privacy laws" are challenged constantly... if they weren't there would certainly be NO civil rights whatever within a generation unless you were of the elite class. BUT...
It is probably also the single most abused area of jurisprudence, especially in the US, but in really any and all democraticly structured society. Invasion of privacy is OFTEN (all too often) succesfully argued by the defense in everything from rape cases to murder cases to child abuse cases. It is one of the dearest held rights in US jurisprudence and thus is invoked by EVERYONE who wants privacy for ANY reason.
There has to come a point when you can no longer say it's privacy invasion... but determining where that point lays is the sticky part. Too much and the closed bedroom door becomes sacrosanct again, as it was in the late 19th century, too little and Big Brother will have surveilance cameras installed in your breakfast cereal the next day. Very ticklish subject.
Draxy
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Post by Hussar on Nov 6, 2003 23:33:00 GMT -5
That's very true Draxy. Sorry, I see your point now.
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Post by ShonenSenshiDave on Nov 9, 2003 7:36:45 GMT -5
Draxy:
Some rights you are pointing out are statutory, some are constitutional, while others are created by judicial activism. Further, they have different reasons for existance. Finally, I have absolutely no idea where you came up with the whole "it applies to defendants in rape, murder, and child molestation cases" argument. It's usually the victim that has so many rights it practically makes the US Constitution pointless. Rape Shield, Children's Outcry, Victim's Bill of Rights, etc. Very pro-victim. The only thing my defendants have would be the Constitution, and it's being shredded! Anyway...
The most relevant privacy issue in this discussion is the "penumbra of privacy" created by the US Supreme Court. This is a blanket "people have privacy rights" ruling created in the 60's, IIRC. It was created when the Court ruled on the right of a woman to use birth control. Then it was expanded to include abortion. It's gone back and forth over the last couple of decades. sometimes winning, sometimes losing. Right to die cases cited this "penumbra", but lost at the Supreme Court level. It was unsuccessfuly argued in Bowers v. Harwick, the gay rights case from 1986, but reargued successfully in 2003 in Texas v Geddes.
The main problem with this line if cases is that there really is no Constitutionally-based CIVIL right to privacy. The 4th Amendment guarantees that a CRIMINAL defendant shall be secure in his person and premises, and the 14th Amendment forces the states to use that as a baseline. However, there is actually no Amendment or Clause in the Constitution which grants the rights espoused in Englestadt, Roe, etc. It's an illusion created by the United states Supreme Court. That's why, as you pointed out, it can be problematic.
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Post by Draxy on Nov 9, 2003 10:07:54 GMT -5
The problem as I've always seen it with the US judicial system is that it is adversarial in basis, instead of co-operative. The idea of protecting the right of deniability for child molestation cases, in particular, seems counter productive... yet how many cases can be cited where the prosecution wanted blood tests, for instance, and they were denied on the grounds of invasion of privacy? Too: the Rape Shield law, which is probably the most far reaching of these in defense of the victim, is far from perfect. Take a look at the link below for just one quick example. www.usatoday.com/news/opinion/editorials/2003-07-27-estrich_x.htmThe victimizer (through his lawyers) still has the right to put the victim on trial as the system stands. Draxy
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Post by ShonenSenshiDave on Nov 12, 2003 20:09:53 GMT -5
Let's not take that article out of context, now. There are several important issues that the writer either failed to mention or was too busy venting to use a bit of logic here...
FACT: The "victim" provided what was allegedly a semen sample from Kobe left on a pair of panties. This is routine in all rape cases; gather as much physical evidence as possible. The state asked for it, not Kobe's attorneys. And what happens? Turns out that the sample is from the wrong guy... uhhh, oops. Kinda hard to argue trauma from Kobe's attack when you're providing the DNA of another man with whom you've had sex with the day after your alleged rape. It's physical evidence to support the defense claim that she had sex with other men, and that any of them could have caused the physical bruising she suffered.
FACT: She told the state's detectives that she had sex with three different men in three days time. Again, the defense didn't ask for this; she offered it to the state. You bet I'm gonna take advantage of a gem like that!
FACT: The rape shield law does not apply where the defense is trying to show that there was a relationship between the two such that the victim's claim of force is negated by her history of consent with the defendant. Now, this hardly means that just because she said yes in the past she always has to say yes, but it certainly makes it more likely that she did, and since rape is a crime of violence, consent is generally a key issue.
I am so sick of hearing about "victim's rights" in this day and age. Police regularly violate the rights of my clients, victims often "forget" pieces of information which make them look bad, and the Constitutional rights afforded to a defendant are hardly worth the paper they're printed on at this point. Personally, I ouwld use everything in my arsenal to ensure a fair trial for a client, especially since the deck is usually stacked against them to begin with!
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Post by Draxy on Nov 13, 2003 2:39:33 GMT -5
Look, SSD, I'm not even saying that this specific girl was raped, but rather that it is utter and complete babbling BS to say that the Rape Shield law isn't violated in EXACTLY this fashion by guilty parties every single flamin' day!
You know it and I know it!
While I am not up to arguing case law with a lawyer; I've had more than one girl show up at my Outreach program in the past, beaten up and with that bleak blasted look that is just SO common it's sickening. They were often (at least part time) hookers, and thus in a line of work where they are NOT going to have any chance of receiving anything vaguely resembling benefit of the doubt. And yet do you know, almost always when they were raped and beaten it was by men they said no to, that they wouldn't hook for, men that they thought were friends.
Now may be there would be some who say they have it coming. That they have established a pattern that disallows them any sense of public outrage at their situation. I say: BULL MANURE!
NO ONE deserves to be raped and beaten.
NO CHILD ever deserves to be molested, yet there is such terror for the child's guardians that if they bring the victimizer to trial that the child will be made to live it all again, in front of a group of strangers this time, that MOST child molesters who start through the system never come to trial.
Your clients have rights, yes. So do the victims and until VERY recently they had NONE at all in any reasonably enforcable way that wasn't vigilante justice.
I was one of those children of abuse, many a year agone and have held more than one hysterical teenaged girl in my arms (or stood by while one of the female staff did so because the girl was afraid to let ANY man near her) while she cries herself sick because she's been raped by someone she TRUSTED and KNEW beyond any shadow of a doubt that when it was brough to court it would most likely get laughed out because she had hooked in the past.
Your clients deserve their rights... so do the victims though and STILL, MANY have them trampled in just such a way. They are abused AGAIN by the very system that is supposed to bring them relief.
Draxy
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Post by ShonenSenshiDave on Nov 13, 2003 7:11:49 GMT -5
Unfortunately these are the collateral consequences of having what is referred to as an "adversarial system". The whole point of the system is opposition and argument. Do I understand where you're coming from? Of course. It's never fun to browbeat a 5 year old or a 12 year old victim; I've done it, and it brings me no joy. But it's our legal system, like it or not. Me and the DA's aren't a team meant to do everything we can to make everyone's life easy; when it comes right down to it, there's a reason we're referred to as "opposing counsel". Most of the solutions I've seen violate the Constitution, and the ones that don't are mediocre at best and actually probably won't be used by preosecutors...
Here's an example why. In PA, we just amended our constitution to allow depositional testimony of the victim to be taped and presented in court to avoid having child victims testify and relive everything in a courtroom full of people. And you know what? Most prosecutors probably won't use it. Know why? It doesn't have the same impact as live testimony. A calm victim retelling a story to a DA and defense attorney which is taped and shows a calm victim who may not even shed a tear makes for bad sympathy. The hysterical crying victim live in court has much more of an impact on the jury and helps to demonize me and my client. As much as I hate to admit it, sometimes it is the "Old Razzle Dazzle" when it comes to courtroom tactics. (Do you get the Chicago reference?).
It's just the way the system works. The Da presents his/her case. The defense attorney presents his/her case. And nothing gets a jury like a live crying victim. So I wonder who's really to blame here? The attorneys or the public who seems to enjoy live episodes of "Law and Order" shown as a modern version of the old Gladitorial combat of Rome. The public seems to want blood...
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Post by Draxy on Nov 13, 2003 10:08:09 GMT -5
Unfortunately I think you're spot on correct. I've said somewhere here that I am far from thrilled with our legal system for exactly that (that it is an adversarial instead of co-operative) reason. I realize that the co-operative system also sees it's share of abuses, but the adverarial system seems to get far more than it's fair share of them.
Draxy
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