All of these posts are kind of old, but Transplanted Lawyer had a host of good ones last may (one of which in response to a post here):

Age of Consent Laws

Some young people probably do have enough maturity to deal with sex; some people over the age of eighteen do not. The psychological factors that go into that sort of thing are astonishingly complex and functionally impossible for an objective third party to evaluate. That’s why the only possible way to handle the question of how old should we require someone to be before we agree that they can consent to sex of necessity must be totally and completely arbitrary. Maybe as a moral matter we can create constructs to handle particular situations, but as a legal matter it’s simply too big of a mess to ever be anything but an arbitrary distinction that often will have little relation to case-by-case realities. {…}

Eighteen years is as good an arbitrary age as any other reasonably young age one might come up with. Here’s why I think that — the age must of necessity be above the age at which one’s body attains sexual maturity, because the harm that the law seeks to avoid is mental, emotional. One needs some time to come to an understanding of what one’s body is capable of doing, and that takes practical experience, not theoretical knowledge, of what sexual maturity feels like. What does it feel like to be sexually aroused? You can read about it in a book all you like, but until you experience it, the descriptions don’t make any difference and aren’t particularly meaningful. So the law needs to set the line at some point late in adolescence. Eighteen years is an age by which we can be reasonably certain that most people will have entered puberty and picked up a few years’ worth of experience with their newfound sexual maturity and awareness.

I still disagree with TL on the subject in part because he has a lot more faith in judges (and prosecutors) than I do. In order for the judge to be able to look at the situation, it has to get to him. Many defendants will probably plead out simply because the judge has the ability to drop a two-story house on him. Particularly if he’s caught as having done it. It’s low-hanging fruit for prosecutors and there’s no telling how any given judge will read the situation.

No Heart Balm Here

If there was going to be a “heart balm” case, it would be Askew v. Askew (1994) 22 Cal.App.4th 942, referred to here by Eugene Volokh. Basically, the wife admitted that she lied to her fiance about loving him, being attracted to him, and enjoying sex with him. Based on his belief in her statements, he transferred five pieces of property that he owned individually into the marital estate. The couple then divorces and husband sues wife for fraud, asking the court to undo the dedication of the property into the marriage. The court says “no way,” because that sort of thing — even though, in a commercial context, it would obviously be fraud — it would open up a huge can of evidentiary worms for future courts to sort out.

This one is my favorite post of the three as it brought to my mind a subject that I hadn’t thought a whole lot about.

An Hour Of Traffic Court Will Do You Good

The first thing you might want to think about if you have to actually try your traffic ticket is — why would the cop lie? An unbiased traffic judge doesn’t start out thinking anyone is lying, and the police officer gets to testify first. That’s a powerful advantage for the state. The officer gets to set the stage, describing what was going on, and a well-trained officer uses that opportunity to explain why the defendant’s (alleged) misdeeds were dangerous. If you’re going to actually win on the testimony, you need to find some way of getting past that.

Secondly, given that the judge is not inclined to think that the cop is lying, simply contradicting the cop is, as a practical matter, not going to be enough to defeat the state’s burden of proof. Your testimony that the police officer was simply incorrect about something will not be credited. The officer has been to traffic patrol school, the officer is trained in observing traffic conditions and records his or her recollections very quickly after the ticket is written. You very likely have not done this. Therefore, the officer’s testimony about the circumstances of the ticket is likely to be credited over yours in the event of a simple red-light-green-light contradiction. {…}

I don’t particularly like finding people guilty of traffic violations. But it has to be done. I would like to find reasonable doubt if I can, and sometimes I ask searching questions of the officers to see if there is any doubt. But as a defendant, you have to give me something I can hang my hat on. You have to do something more than just say “Nuh-uh” when the police officer says you ran a red light, were speeding, or otherwise committed one of these infractions.

Ahhh, a subject near and dear to our hearts. I agree with TL that even in Ticket Towns the vast majority of the time the people that get pulled over were breaking the law. Sometimes the law simply exists to be broken (“Speed traps”) and sometimes not, but generally speaking there are too many people that are perpetually breaking the law for them to bother to trump up charges on people that are doing no wrong. As for the lack of incentive to lie… well there’s fundraising and the fact that most of the time there is little to nothing that we can do to refute what the cop has to say. There is unfortunately no real way for the system to tell when a cop is acting in good faith and when he isn’t.

Category: Courthouse

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6 Responses to Because Potted Plants Don’t Blog

  1. Gannon says:

    Age of consent at 18 is completely unnatural, because people sexualy mature between the ages 12-14. At 14, you can be sure that (almost) all people are sexually mature, therefore age of consent should be 14. Setting it 4 years later is unnatural. Age of consent has nothing to do with civil capacity or age of mayority. Age of consent is related to juvenil criminal responsibility, which also is around 14 in most countries.

  2. trumwill says:

    I thought the US’s setting of the age of criminal responsibility at 14 was something of an abnormality?

  3. trumwill says:

    Age of consent has nothing to do with civil capacity or age of mayority.

    You may think that it shouldn’t, but in the American way of thinking it takes into account a lot of things.

    My wife and I were watching an episode of The Practice recently wherein a man was tried for the statutory rape of a young boy. I can’t remember whether the boy was 13 or 14, but he was obviously damaged by the interaction.

    When I was younger I hung around in the same circles as a kid that had the extraordinary ability to manipulate people’s sexuality and get other kids to experiment homosexually or bisexually. It wasn’t a good thing (as I believe a lot of guys were drawn into behavior that ran against their grain), but there wasn’t much that could be done. It was one boy manipulating another.

    This is one of the areas where I think that the age of the older partner makes a pretty big difference. On the TV show, the man in particular had his own house, own transportation, and money with which to buy things for the kid. He had more resources to use with which to manipulate the boy than did my acquaintance a decade ago.

    One can draw the distinction and say “Well that’s different because it’s homosexual” (and I think you’ve used that line of reasoning before), but being drawn into sexual behavior against one’s innate preferences and against one’s interests is not the province of homosexuality alone. Young women can be and are drawn into sexual situations with which they are in above their heads. Older people are much more likely to have the manipulative skill and resources to do that.

  4. Gannon says:

    “I thought the US’s setting of the age of criminal responsibility at 14 was something of an abnormality?”

    No. In most countries juveniles between the ages of 14-17 are tried under a juvenile criminal code and go to juvenil jail (separate from adult prison). Obviously, sentences are much shorter (usually limited to 10 years) and the focus is on rehabilitation. In a lot of countries (example Germany), adults between the ages of 18-20 can be tried as juveniles if rehabilitation seems likely.
    What is so strange about the US is that they try juveniles like adults.

    ” My wife and I were watching an episode of The Practice recently wherein a man was tried for the statutory rape of a young boy”
    Homosexuality, pornography and prostitution requires a higher maturity, so consent for participating in these activities were abuse is probable should be at 16-18.
    14-15 year old girls are much more mature than boys their age.

  5. Peter says:

    I figured the chances were 100% that an AOC post would attract comments by Gannon.

  6. trumwill says:

    Yeah, I have a pretty good idea when he will contribute :). I have no problem at all with him voicing his perspective, though, when it’s actually on-topic as it is here.

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