Posts Tagged ‘Statutes’

Let’s Make a New Law!

Thursday, October 24th, 2013

Any moderately well-informed person these days is aware of the shocking injustices that happen whenever criminal laws get written by people who don’t really understand what criminal law is, or how it works. (Brilliant summary here.) They tend to create crimes that are ill-defined, overbroad, and usually an overreaction to the perceived harm. The results can be pretty bad.

How much more cause for concern, then, when the proposed crime violates not only the fundamental principles of criminal jurisprudence, but cherished individual rights that have nothing to do with crime?

And how much more cause for concern, then, when those who catch potential problems are not engaged in thoughtful debate, but are instead shouted down and accused of malicious and reprehensible conduct?

It looks like that’s what’s been going on recently in an ongoing debate over proposed “Revenge Porn” legislation that’s floating around out there. At first the shenanigans were amusing to watch, but lately it’s turned into a distressing train wreck online. A law has been proposed in reaction to something with a lot of emotional pull, thoughtful people have voiced concerns that it may be a bad law, and its proponents have responded less with reasoned debate than with emotional backlash. Those who disagree are shouted down as stalkers and assholes; their comments are deleted so that others may not see them.

Ignoring whether either side is right or wrong, what a terrible blow this has been to the credibility of the law’s proponents. Think how insecure they must be in their own assertions to react so defensively. How much confidence can than inspire in the rest of us?


“Revenge Porn” is pretty much what it sounds like. You’re in a relationship with someone, they let you have some nude pix, then there’s a breakup and you feel bitter and to get back at them you post their nudes online for the world to see. It’s a nasty, cruel thing to do. It’s not hard to imagine society thinking the practice to be so bad that it deserves to be punished. It’s easy, in other words, to see Revenge Porn as something that might be criminalized.

Some law professors have been pushing a model statute that would criminalize the practice. So far, no big deal. This is something that law professors are expected to do.

None appear to be professors or practitioners of criminal law, though. That’s not encouraging. Those reviewing the language will therefore probably want to keep an extra-sharp lookout for things like imprecise (or missing) mens rea, over-inclusive definitions, and conflated or confused concepts, etc. Nothing personal, just a normal precaution. You get this stuff all the time.

An extra wrinkle comes from the fact that posting a nude picture of your ex counts as “speech” for First Amendment purposes. And the First Amendment doesn’t let the government criminalize speech, except in very tightly controlled circumstances. Even the most awful, painful, hurtful and distressing speech (such as that of the Westboro Baptist “Church”) is not something that gets criminalized in this country.


This is a criminal law blog, not a First Amendment forum, and so it’d be somewhat off-topic to get into whether or not Revenge Porn is something that can be criminalized without running afoul of Freedom of Speech. But it is pertinent to note that the professors’ interpretation of the 1st Amendment here is not universal — and it is also relevant to examine how they have reacted to the ensuing disagreement.

To be fair, the law’s proponents are from academia, where disagreement (often) = bullying and criticism (sometimes) = hate speech. Where speech is generally not very well protected, in the first place. Where debate can be frowned upon and contrary points of view shouted down, removed from newspaper bins, at times even persecuted and hounded out. You ain’t seen petty vindictiveness until you’ve seen someone challenge the orthodoxy. You don’t get this from the better professoriate, of course — there are plenty of wonderful academics who welcome healthy debate, the chance to make their case or (as the case may be) get a new point of view. But there are plenty of others who prefer to point to their credentials and their peer-acceptance as proof of their correctness, and who get the most defensive when challenged.

You can usually tell which kind of academic you’re dealing with based on how they react to a contrary position. The ones who are pushing the Revenge Porn law, sadly, seem to be falling into the lesser camp so far. This is not good for their credibility.

So to the extent that First Amendment practitioners are in dispute with these particular academics, one might be inclined to conclude that the practitioners could perhaps be more likely to be correct.


But again, this is a criminal law blog. So how does the law look from the perspective of our criminal jurisprudence?

Not… not so great.

Here’s what the model statute says:

Whoever intentionally discloses a photograph, ﬁlm, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the context of a private or conﬁdential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.

(a) Deﬁnitions: For the purposes of this section,
1) “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.
2) “intimate parts” means the naked genitals, pubic area, buttocks, or female adult nipple of the person.
3) “sexual contact” means sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.

(b) Exceptions:
1) This section shall not apply to lawful and common practices of law enforcement, the reporting of unlawful conduct, or legal proceedings.
2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.


Holy cannoli, where to begin…?

The first problem is one of good old mens rea: It criminalizes disclosing the image without the subject’s consent, regardless of whether the actor knew about it one way or the other, or meant to do so without consent. It criminalizes the act where the subject had a reasonable expectation of privacy, regardless of whether the actor knew or had any reason to know it. The only mens rea here is whether the image was disclosed intentionally.

It’s a strict liability crime. Whenever you see that, huge red flags should be popping up in your head screaming “INJUSTICE AHEAD!” Sure it doesn’t criminalize accidentally dropping a photo out of your wallet, but it does criminalize showing it to people with the mistaken belief that your wife was cool with it — or without the knowledge that she had since changed her mind.

The second problem is one of conflated concepts. “Reasonable expectation of privacy” is a concept of Fourth Amendment law — of procedural rights, not of criminal liability. It is a term of art that has been defined in a fairly convoluted fashion over the years in such a way that the average layman couldn’t give you an accurate definition of the phrase if his life depended on it. His liberty would depend on it, here. The authors probably don’t mean for this phrase to have the meaning & baggage it carries in Fourth Amendment jurisprudence. They just think it sounds good. And so there is inherent confusion in the statutory language. It is not clear what is actually meant here. And where there is vagueness in criminal law, where there is room for interpretation, there is room for cops and prosecutors to screw over the regular Joe. And if you don’t think that happens, you’re not getting out enough. When you see conflated concepts and room for interpretation, those red flags ought to be screaming at you even louder.

The third problem is one of unclear writing. Seriously, what do the “consent” and “reasonable expectation of privacy” clauses modify? Does this refer to images that are disclosed without consent, or taken without consent? Does this refer to images that were disclosed under circumstances where someone had an expectation of privacy, or taken under such circumstances? Is it criminalizing pictures of sexual acts that were nonconsensual? What about images that were taken by someone else, and then given to you by your ex? What about images that someone else forwarded to you, or you found online, and had no way of knowing whether they were consensually/privately taken or disclosed (whichever verb applies)? It can be read all of these different ways.

There is literally no way of knowing for sure what conduct is criminalized here. As written, it outlaws all kinds of behavior its authors probably didn’t mean to punish. It is overbroad as hell. You hear those red flags? Since when do flags scream? These are. Get some earplugs.

Strictly from a criminal perspective, this is a god-awful statute. It’s another one of those “think of the children” “take back the night” “let’s name a statute after the victim” kinds of legislation that pave an eight-lane superhighway to hell with their good intentions.


You want a statute that works? (Again, ignoring any First Amendment concerns.) Here’s one I banged out in court this morning while waiting for a case to be called. Zero research or deep thought went into it:



(A) “Private Sexual Image” = any media containing:

(i) an image taken in a non-public place, and in a non-commercial setting…

(ii) of a living person whose identity is readily ascertained from the contents of the image…

(iii) and depicting that person’s unclothed genitalia, buttocks, or female breasts, or depicting that person engaged in sexual intercourse, oral sex, manual-genital contact, or other such sexual behavior…

(iv) and which has not previously been “distributed” as that word is defined herein.


(B) “Distribute” = make publicly available by any means, including displaying in public or in a publicly-accessible medium, sharing via any communication or peer-to-peer arrangement, and any other method that makes a duplicate of the image available to others. Excluded are private acts of showing the image, without duplication or transmission, to individuals or small groups of people.



Any person who, with the intent to harass, shame, or defame another person:

(1) distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of that other person;

(2) when he knows, or a reasonable person similarly situated would know, that he does so without the consent of that other person; and

(3) thereby does harass, shame or defame that other person

is guilty of a Fucking Nasty Crime.





is guilty of a Nasty Crime.


Any person who

(1) intentionally distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of another person;

(2) when he knows that, or recklessly disregards whether, he does so without the consent of that other person

is guilty of a Crime.



It shall be an affirmative defense to all of these crimes that, when the image in question was originally taken, it was reasonable to expect that it would later be viewed or possessed by people other than those who were a subject of the image, the person taking the image, and the person accused of distributing the image.

It shall be an affirmative defense to the Fucking Nasty crime that the image in question was transmitted to the accused via electronic or other means whereby the image could be “forwarded” or otherwise duplicated and transmitted to third parties.


There, quick and easy. There’s probably stuff to fix in there, as well, and again who knows if it’d pass constitutional muster on other grounds, but it’s hardly as overbroad or prone to injustice as the one those professors are promoting.

I bet you can do it even better. You are cordially invited to tear my suggestion apart in the comments, and provide your own language. Have at it!

Understanding the law

Friday, March 8th, 2013




Knowledge is the what. Understanding is the why.





So how does get this understanding?






Which way would you prefer to learn them all?








Go on, try it!

On Overcriminalization: There’s nothing new under the sun

Monday, June 11th, 2012











Which my antique Church & Brodribb translation has as:












Grammar Police Fail

Wednesday, December 1st, 2010


So everyone from the Washington Post to Fark is reporting gleefully about the recent acquittal of a Northern Virginia man charged with failing to stop for a school bus picking up kids.  The defense attorney is getting kudos for pointing out that the law, when rewritten 40 years ago, omitted the word “at.”  The resulting language, agreed the judge, only criminalizes a driver who fails to stop a school bus that was stopped.  Absurd, but Virginia doesn’t let judges add words to statutes by interpretation, even if they’re absurd.

So far, so good.  We’re all in favor of forcing the government to do its job properly before being able to impose a criminal punishment.  And one of our pet peeves is poorly-drafted statutes and regulations, many of which seem to have been written by junior high dropouts.  Passing a stopped school bus is incredibly dangerous and richly deserving of criminalization, but we have no problem with someone getting off on a technicality of bad drafting.  A poorly or vaguely drafted statute does not provide the notice of criminal liability that is a basic element of Due Process, and the state shouldn’t be allowed to punish someone for violating it. (See “Honest Services.”)

But on actually reading the statute, we have to say the judge screwed up.  Here’s what it says:


The error here is not the omission of the word “at” after the word “stop.”  It’s the inclusion of a gratuitous comma after the word “direction” — a comma which is artless, but nonetheless does not change the meaning of the sentence.

Here’s the sentence with the “at” included:

A person is guilty of reckless driving who fails to stop at, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

That reads even worse.  That’s where the “at” was before amendment.  (But the statute also had a lot of other language as well that was deleted or replaced.  It read fine before it was amended.)

Here’s the sentence with the gratuitous comma removed:

A person is guilty of reckless driving who fails to stop, when approaching from any direction any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

This makes perfect grammatical sense.  It’s still artlessly written, but it scans.  You’re guilty if there’s a bus stopped to pick up or drop off kids, and you don’t stop, no matter whether you’re coming from behind or ahead or the side.

As written, it still says that.  The extra comma (a bane of ancient legal writing) doesn’t change the meaning one way or the other.

Speaking as a card-carrying Grammar Nazi, the judge was simply wrong to think it meant you’re guilty if you fail to stop a school bus you approached.  The same misreading could be used to say you’re guilty if you fail to stop your own car for the purpose of taking on or discharging children.  The Commonwealth cannot appeal from an acquittal, so this case is over, but the defense really was in the wrong here.

How would we have written it?  To convey the same meaning, we’d probably draft something like this:

A person is guilty of reckless driving if he fails to come to a full stop a safe distance away from a school bus that is stopped on any road for the purpose of taking on or discharging children, regardless of the direction in which he is traveling.

Or some such.

Anyway.  Kudos to the defense lawyer — it’s still a perfectly valid victory, and in a way it’s nice to have a foolish judicial decision in the defense’s favor for a change.  But it’s a good thing that driver didn’t hit a kid.  His actions still count as reckless under any definition of the word.

Decent, law-abiding citizen? Go directly to jail.

Saturday, October 30th, 2010







It’s Just Stupid: How the feds screwed up their lawsuit challenging Arizona’s immigration law

Wednesday, July 7th, 2010


Now that we’re all immigration lawyers, we figured we’d better take a gander at the complaint filed yesterday by the feds, seeking to strike down Arizona’s new immigration law.  The feds say Arizona’s law is preempted by federal law and policy, and so must be struck down under the Supremacy Clause of the U.S. Constitution, art. VI, cl. 2.  (You can read the complaint for yourself here.  The text of the law can be found here.)

After reading the complaint in its entirety, we have to say that it’s mostly stupid.

The law was hotly criticized by the Obama administration even before it was enacted back in April, so it’s no surprise that this action was filed.  We’re surprised it took this long to do it.  And we’re even more surprised, given how long it took, that the feds did such a shoddy job of it.

In broad strokes, Arizona wants to deter illegal aliens from sticking around in Arizona.  To that end, among other things, the law:

  • Tells Arizona police they have to verify someone’s lawful presence if, during an otherwise lawful stop, they have reasonable suspicion that the person might be here unlawfully.  §11-1051(B) [referred to as Section 2 in the complaint].
  • Amends existing law, permitting police to make a warrantless arrest if the officer has probable cause to believe that a misdemeanor or felony has occurred, to add that the police can make a warrantless arrest on probable cause to believe the suspect committed an offense for which he could be deported.  §11-1051(E) [in Section 2 of the bill, but perplexingly referred to as Section 6 in the complaint].
  • says Arizona citizens can sue for money damages if any Arizona state or local official or agency “adopts or implements a policy” of not enforcing federal immigration laws to the extent permitted by federal law.  §11-1051(G) [Section 2].
  • makes it a crime of trespassing to be present in Arizona in violation of federal law.  §13-1509(A) [Section 3].
  • amends existing state law against smuggling human beings (§13-2319 [Section 4]) to permit the police to stop a car they reasonably suspect to be in violation of both a traffic law and the already-existing law against smuggling.
  • prohibits illegal aliens from seeking work in the state.  §13-2928(C) [Section 5].
  • makes it illegal for “a person who is in violation of a criminal offense” to transport or harbor illegal aliens.  §13-2929(A) [Section 5].

The general argument the feds make is deliciously ironic: Requiring compliance with federal law would conflict with federal law.  At first glance, it seems like everyone at the DOJ who approved this complaint skipped Logic 101, and listened instead to John Cleese’s logic monologue on the Holy Grail album.  But this is not really the stupid bit.

Their argument is more along the lines of (1) the feds get to determine policy of how and when the feds enforce their own laws; (2) Arizona isn’t telling the feds what to do, but it’s going to be enforcing the same laws more thoroughly; so (3) Arizona is messing with the feds’ policy.  This is one of the stupid bits, because nowhere does Arizona tell the feds what to do or how to do it.

The Complaint commits some intellectual dishonesty, however, to make it seem so anyway.  They repeatedly misquote the Arizona law to say a citizen can sue “any” official or agency for failing to enforce the immigration law.  They make it sound like Arizona citizens could sue federal officials for failing to enforce federal law.  But that’s not at all what is said.  The Arizona law only (more…)