Criminal Heterosexual Speech

September 10, 2014

Though the title of this post sounds like SEO keyword trolling, it is not. Yesterday, the Massachusetts Supreme Judicial Court released its opinion in Commonwealth v. Sullivan (can be found here).

Mr. Sullivan was found guilty of violating G.L. c. 272, sec. 53, which sets forth the statutory penalty for prostitution as well as “persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex”. I’m sure you see where I’m going with this.

Here is the entire fact pattern laid out by the SJC:

At approximately 9:30 p.m. on September 28, 2007, R.M. was walking alone on Massachusetts Avenue in Cambridge. She was returning to her dormitory on the Massachusetts Institute of Technology campus after a Tae Kwon Do class. The operator of a motor vehicle traveling on Massachusetts Avenue, whom R.M. later identified from a photographic array as the defendant, swerved toward her and stopped on the side of the road. R.M. thought that he was going to ask for directions, so she took a step toward the vehicle. The defendant rolled down the window and said, “Hey little girl, you look so tired. Come on over. Talk to me. Let’s, you know, let’s talk.” R.M. described the pitch of his voice as “much higher than his normal tone of [*5] voice, more like, well, what you use to bribe someone.” She stepped back from the vehicle and started walking away because she “didn’t want to have anything to do with that situation.” The defendant then got out of his vehicle while the engine was still running, and he walked toward R.M., asking her to come over and speak with him. R.M. declined to engage him in conversation and attempted to move away. The defendant came closer, causing R.M. to angle her body to avoid touching him. Eventually, R.M. managed to continue on her way, the defendant returned to his vehicle, and he drove away. The encounter, however, did not end there.

Apparently changing his mind about heading toward Boston, the defendant suddenly reversed his direction and followed R.M. in his vehicle as she turned onto Landsdowne Street, which at the time was dimly lit and devoid of other pedestrians. When he caught up to her, the defendant stopped abruptly and got out of his vehicle a second time. With the engine running and the car door open, he approached so closely that R.M. was aware of an unpleasant odor emanating from his body. The defendant sounded angry, and he demanded that R.M. “get in his car.” Although he did [*6] not touch R.M., the defendant made a gesture like he wanted to put his arm around her shoulder and guide her toward his car. At this point, R.M. was “very scared.” She moved away from the defendant, turning sideways on the sidewalk so she could “scootch” between the defendant and a wall that was behind her without touching him. As R.M. walked past the defendant, he started to follow her. R.M. then began reciting to herself the license plate number of the defendant’s vehicle. At that point, the defendant “stormed off,” got into his car, and left the scene. R.M. ran straight to her dormitory feeling “really, really, really scared,” and the police were called.

Mr. Sullivan, properly, was convicted of attempted kidnapping. The only other charge, however, was for accosting or annoying a person of the opposite sex. In short–if R.M. was a man, Mr. Sullivan would not have been guilty of this crime. Given that the facts giving rise to a violation of the statute would generally occur in a sexual harassment situation, homosexual men and women likely would not find themselves in violation.

I’m not a fan of the “accost or annoy” language, as I feel it is too vague for first amendment principles. But, assuming otherwise constitutionally applied, the statute needs amendment. If the people of Massachusetts feel it warrants criminal punishment, then it should mirror other statutes and eliminate the “opposite sex” language or modify to “on account of sex” or some such. It likely could not survive review under Goodridge v. DPH (the marriage case). I must say, I am surprised Mr. Sullivan’s attorney did not argue this issue; a quick review of earlier proceedings did not seem to demonstrate such. Given the attempted kidnapping conviction, I’m not sure Mr. Sullivan could or would raise the argument in the future. Either way, this should be legislatively corrected.


That’s one way to do it

August 12, 2014

It is a pretty common story — “christians” protest other people having fun. In this case, a church in Ohio decided that it is their business to protest a strip club and to harass its patrons.

What makes the story uncommon — the strippers decided to protest the church.


California Considers “Affirmative Consent” Requirement for Sex at Colleges

August 12, 2014

The motivation for this law is noble – who doesn’t want college kids to consent before sex?

If SB-967 passes, then California colleges will be required to adopt policies that require “an affirmative, unambiguous and conscious decision” by each participant. If one of them is silent or expresses no resistance, that’s not enough.

If the accused party wants to claim that there was consent, it won’t fly if the other party was asleep, unconscious, drunk, or on drugs.

“No means no” makes plenty of sense. Some of the bill makes plenty of sense too. But, there is some question as to whether we want to have college administrators acting as rape-investigators. On one hand, this is Law Enforcement’s job. On the other, I’m not exactly sure I’d be confident in the cops doing the best job.

I’d be a lot more comfortable with something like this if it had provisions to protect the falsely accused — and yes, that’s a thing.


Gov. Dewey was Wrong: Obama 2016

August 6, 2014

During his 1944 campaign for President, N.Y. Governor Thomas Dewey argued that permitting Pres. Roosevelt to have a fourth term was a dangerous threat to freedom. Gov. Dewey lost in 1944 and, more famously, in 1948 against Pres. Truman. Dewey Beats Truman However, Gov. Dewey, with a Republican Congress, managed to get the 22nd Amendment introduced and, ultimately, ratified. This may have backfired.

President Franklin Roosevelt was the first person to win more than two terms. But, he was not the first President to seek a third term. His distant cousin, Theodore, sought a third term. As did others. Rather than threatening freedom and potentially enshrining a de facto monarch, permitting a sitting two-term President to seek a third term served a valuable function in our system of checks and balances.

Presidents Eisenhower, Nixon, Reagan, Clinton, G.W. Bush, and Obama were termed “lame ducks” upon their second election. Prior to this point, no two-term President was a lame duck until he bowed out or the election was lost. Instead of a 2-8 month lame duck period, we now have a 4 year, two month period. But, is he truly a lame duck?

Presidents have done a great many things in their second terms. The Watergate coverup, Iran-Contra, the Lewinsky scandal: to the extent the President himself is alleged to have been involved in a cover-up, that cover-up occurred during the second term. Speaker Boehner has now turned to the courts because he believes Pres. Obama is not faithfully executing the laws. Ultimately, the Court, though, cannot force a President to act, even assuming Speaker Boehner is right and could win. And, even though Congress gets to decide what constitutes “Other High Crimes and Misdemeanors”, impeachment is really a 2nd degree political action–you vote for the people who vote on impeachment. Prior to the 22nd Amendment, second-term Presidents had a check on their power to act (or not act): the third-term campaign. Presidents no longer have to worry about facing the electorate for a third time and can act (or fail to act) with virtual impunity. Such may be a more dangerous threat to freedom than Gov. Dewey imagined.


Marriage Equality Marches North in Florida

August 5, 2014

It wasn’t much of a surprise that a Key West judge ruled that Florida’s ban on same sex marriage was unconstitutional. Miami-Dade was a crapshoot. Now a Broward County judge held the same thing — but going beyond, recognizing same sex marriages outside of Florida. (source)


Cop shoots kittens in front of children

August 5, 2014

An Ohio mom called animal control to take away a feral mother cat and her kittens. So, in front of her kids, he pulled out a gun and shot them.

Police Chief Mike Freeman defended the shooting as a method of euthanasia and defended the action of the officers, stating that, “the officers will not face any disciplinary actions.” (source)

I was pretty sure that this was something from The Onion when I first saw the headline. It is not.


UK Duo Convicted of Mere Possession of Pornographic Images

August 5, 2014

Two men in the United Kingdom were sentenced to a £500 fine and a two year suspended sentence for possession of “disturbing” pornographic images. The images were described as “extreme pornographic image[s] likely to cause injury,” and “pornographic images involving animals.” (source)

The men claimed that they did not view the pornography, nor did they seek it out, but that the videos were sent to them via WhatsApp. When your receive a video or an image from that (or other messaging services) it often gets automatically added to a smartphone’s camera roll. The men were unaware of this fact, and carried the porn around for months before getting caught with it.


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