By request, I’ve made a flowchart to help determine whether an encounter was legally “rape” or not. It’s really tough, because every state’s law is different. So this is just a general summary of how the laws work in general, and should not be taken as a statement of the law in your state!!
If you think you may be a victim in real life, contact local law enforcement.
If you are being accused in real life, speak to a lawyer who practices in your state.
For a more thorough discussion, see the section on rape over at lawcomic.net.
(apologies for the breaks, had to chop it into little images to make it fit on Tumblr)
Have you ever considered making your comics a bit bigger with maybe a higher resolution or something? I have a little trouble reading the small print, and it feels a bit blurry when I zoom in - it's certainly legible upon zooming in, but it'd be neat if they didn't suffer for it.
Yeah, I don’t like that either. They’re made to be clear at 700px wide — the size of the image on the comic’s main site. But Tumblr shrinks them to 500px for feeds, in a way that loses detail. If you click on the pic, though, it should be visible at normal resolution.
[Shameless panhandling: People who donate $10 or more on my Patreon get to see everything in its full 2800x3400 print-ready glory.]
Had a look at my Google Analytics for August to see who my comic’s reaching, and…
My target audience is age 16-30, equally male-female. I’d like them to be involved enough to stick around for at least 5 pages at a time.
Actual readership is 80% age 18-34, 90% male. Per visit pageviews are through the roof — even all the way out at 20+ pages per visit, where you’d expect it to be negligible, that’s still more than 10% of the readers.
So reader involvement is good, age group is about right…
But why are they almost entirely men? Even accounting for the (debatable) possibility that more guys read comics, that’s a huge disparity. At best I’m failing to reach half my intended audience — and at worst I’m alienating them.
If anyone has ideas on how to improve this, I’m all ears.
Question: Should any procedural crimes (like lying) committed during the investigation of a alleged crime be prosecuted if the crime under investigation is found to not exist in the first place? My thinking is: If no crime was committed in the first place, then the investigation should never have taken place. It can't be undone as such, but anything found out during that investigation should be inadmissible and documents be destroyed. Likewise, any procedural crimes should not be prosecuted.
Just because no crime actually occurred, that doesn’t mean the government shouldn’t have investigated whether a crime had occurred. That’s the point of an investigation — to find out. Back when I was a prosecutor, I ran tons of investigations where I ultimately decided that no crime had occurred (or at least none worth prosecuting). As a defense lawyer, I’ve had plenty of cases where my entire job has been to end an investigation by showing that no crime had occurred, and they need to leave my client alone. It’s more common than you might think for such cases to be dropped before they ever get to the charging stage.
That doesn’t make the investigation itself unlawful. So long as the rules were followed, and people’s rights were respected, the government is allowed to gather evidence to figure out what the heck’s going on. The fact that no crime occurred isn’t what makes the gathering of evidence unlawful. It’s the breaking of rules and violation of rights that does it.
And lying to law enforcement is itself a separate crime. So you could have done nothing wrong, but then you lied to the agents asking about what happened, and you wind up prosecuted for lying to law enforcement. It’s got nothing to do with whether you’d originally committed the crime they were investigating. It’s about the new crime you actually committed while they were investigating.
If you ask me, it’s a bad idea to criminalize lying to the police. For lots of reasons. Not the least of which is that even scrupulously honest and law-abiding people try so hard to demonstrate that they’re telling the truth that they sometimes exaggerate or say things that aren’t 100% true. But the fact is that Congress in its infinite wisdom has seen fit to criminalize it, and there we are.
tl;dr — Your beef is with the legislature for criminalizing basic human behavior (and prosecutors who choose to charge such crimes), rather than with law enforcement for doing its job.
What are your (legal) thoughts on the recent determination that James Brady's death was a homicide?
He was 73. He was shot 33 years ago. There’s a bit of a causation problem, I’d say. How the government would prove that the bullet wound is precisely the thing that killed him is a bit tricky. The NY Times reported today that the medical examiner determined that the gunshot was the cause of death, but an ME’s report is not a legal ruling. A jury’s going to have to be persuaded beyond a reasonable doubt that it took that bullet 33 years to kill Brady, and but for that bullet he’d still be alive today. That’s hard to do for someone who lived as long or longer than the actuarial tables said he would. And it’s even harder when the law says if it takes more than a year and a day to kill someone, then it’s not the cause of death. Which I believe is the law in the relevant jurisdiction.
It’s a big “if,” but even if the feds could prove causation they’re still stuck. Because they already tried John Hinckley Jr. for attempted murder of Brady, and he was found not guilty by reason of insanity. The finding that he was legally insane is a final judgment of fact, binding on any other later cases arising out of the same scenario (in the jurisdiction where that judgment occurred, at least). Because he was already found legally insane in the shooting, he is legally insane for the shooting death as well. As a matter of law, he’s not guilty of the murder, even if the shooting is what killed Brady 33 years later.
Note that I’m not mentioning Double Jeopardy as a bar to prosecution. Because it isn’t. Attempted murder and Murder are two different crimes for Double Jeopardy purposes. Don’t get me started on whether it makes sense for them to be different crimes. The fact is that they are.
tl;dr — (1) It’s iffy to say the bullet 33 years ago is what just now killed this 73-year-old man. (2) Hinckley was officially legally insane at the time, so he can’t be found guilty even if he did cause the death. (3) Double Jeopardy isn’t an issue here.
Would the anti-revenge-porn bill that passed the New York State Senate make it a crime to report sexual harassment if that report included pictures of your boss or congressman's genitals that they'd sent you? The bill number is S5946A-2013.
Perhaps without realizing it, you have asked a particularly difficult question.
I’m not a huge fan of such laws — the bills and proposed laws I’ve seen tend to be terribly written, poorly thought-through, and even hysterical. More the product of a shrill emotional crusade than any thoughtful attempt to craft a legitimate solution to a legitimate problem. They typically look like they’d cause more injustice than they’d prevent. Including criminalizing perfectly legitimate and indeed laudable conduct such as that you describe in your hypothetical.
On first glance, however, the New York bill you refer to would avoid such problems with a seemingly robust mens rea element — To be guilty of the crime, the state would have to prove that you intended to harass, annoy or alarm someone. They would also have to prove that you intentionally disseminated the pictures without the explicit consent of the person concerned.
Intent is the highest level of mens rea; the highest hurdle the state must jump. So presumably this would be the hardest to prove.
At first glance, the law would really only criminalize morally despicable acts of actually trying to harm someone by posting nude pix of them for all to see. It wouldn’t criminalize other circumstances like reporting someone for doing what Anthony Weiner’s supposed to have done.
In real life, however, the fact that you did something tends to be offered as proof that you intended to do it. Such bootstrapping is illogical at best, but far worse is the practical result of shifting the burden of proof onto you the defendant. Now, all of a sudden, you have to prove that you didn’t intend to harm anyone. A hard thing to prove when the “victim” is sitting there saying they were harmed and the fact of your report proves that you had it out for them.
And by reporting the nude-picture-sender, aren’t you in fact trying to at the very least “annoy” him? You want him to get in trouble! Pretty annoying, I’d say. You’re guilty!
And that “explicit consent” phrase should give anyone pause. Let’s say you’re on Tumblr. You see a beautiful, or funny, or intriguing nude photograph. It’s been reblogged 21 thousand times. You reblog it.
Did you have explicit permission from the person in that photo? No. Guess what — you could now be charged with a crime. One that in all likelihood will put you on the sex offender registry.
Oh, you didn’t mean any harm by reblogging it? Tell it to the jury. Maybe they’ll buy it. Then again, maybe they won’t. Most people who go to trial tend to lose, innocent or not. After all, they wouldn’t be there if they hadn’t done something, right?
Some might suggest that the state would never go after someone like you. Those with actual experience in criminal law would disagree — you’re actually the low-hanging fruit. You’re easy prey for a prosecutor looking to get re-elected or a cop looking to make some easy numbers. Also, witchhunts happen. They’re nasty. And they punish the innocent with just as much gusto as the guilty.
I could rant on this forever, but it’s after midnight and I’m in stream-of-consciousness mode already. And I haven’t even gotten to the First Amendment issues yet. It should be obvious to anyone who’s finished their first year of law school that much of the dissemination that falls under such laws’ umbrellas is completely protected speech.
Your hypothetical alone would be speech in the public interest, right? But are you willing to bet your life that the cops and prosecutors and courts will agree? The law itself as written doesn’t make any exceptions for protected speech whatsoever. Are you willing to be the test case to see whether it stands constitutional muster — by which I mean, lose the hearings before a trial judge unwilling to buck the legislature, lose at trial, go to jail, and fight it in the appellate courts to make your point?
And I don’t see any other exceptions either, for that matter. The innocent reblogger is damned. The whistleblower is damned. So is the medical professional. The journalist. Anyone else the witch hunt du jour wants to take down.
I’m going to bed. But here’s the tl;dr: Be wary of criminal laws rammed through by crusaders. Road to hell, good intentions. Innocents suffer.
Is the Plain View test basically the same as the difference between a Spot Check and a Search Check in Dungeons and Dragons?
That’s not a bad analogy. It’s not perfect, though. In D&D, the distinction turns more on how you were looking, whereas the Fourth Amendment will focus more on whether you were invading someone’s privacy.
IIRC, in D&D it’s a search if you’re actively looking for something, and a spot if you just happen to see it. In Fourth Amendment law you can passively spot something and it’s still a search if you saw it while invading someone’s privacy.
And you can have plain view of something you’re actively looking for, so long as you’re not invading anyone’s privacy to see it.
If FLIR devices become more commonly used, then that would reverse the 2001 ruling on police using them to look at peoples' houses? See the recent NPR article and your comic at p=2201.
It’s an intriguing question, and the honest answer is “it’ll depend on who’s on the Supreme Court when the issue comes up again.”
On the one hand, there are definitely judges who think society is better off the more evidence of crimes the police are allowed to gather. Such judges are more likely to say “aha, these gadgets are in common use, so you have to expect that people are using them, so you don’t have that privacy interest any more.”
On the other hand, there are judges who think that, just because a bit of technology is out there, that doesn’t mean the police ought to be allowed to use it without a warrant. Think GPS tracking, internet tracking, etc.
And on that same other hand, there are conservative judges like Scalia who say that by definition you have a privacy interest in whatever is inside your home, so even if other people could sneak a peek at what’s in there the police still can’t.
I’m being way too glib here, so don’t quote any of this in a legal brief, but you get the point.
My guess is most judges would balk at anything that lets the government see what’s inside your home. Just because it might be visible to suitably-equipped citizens, that doesn’t mean you can’t continue to expect it to be private.