by mickbobcat 70 Replies latest social current
Mr Finkelstein : This new law/Bill is wrong in that it lessens the guilt and wrong doing for an adult 18+ enticing an child/ prepubescent into committing a sexaul act.
This new law/Bill does not affect the consequences for anyone who commits a sexual act with a minor under 14. There is a minimum of three, six or eight years in prison with mandatory reporting as a sex offender after release from prison. Read the law - Penal Code ยง 288 (a).
This new law/Bill does not affect the consequences for anyone who commits a sexual act with a minor under 14.
Yeah, until they change those laws to remove the age limits specified in them. Then which limits would apply. Oh, right, the limits in this bill ... right?
See how legislators work. To get something through that they couldn't pass in one go, they can do it a little at a time and how people can't connect the dots.
If this law doesn't affect any consequences, then why have it?
Simon : Yeah, until they change those laws to remove the age limits specified in them. Then which limits would apply. Oh, right, the limits in this bill ... right?
Simon, this Bill doesn't specify age limits. What it says is
This bill would exempt from mandatory registration under the act a person convicted of certain offenses involving minors if the person is not more than 10 years older than the minor and if that offense is the only one requiring the person to register.
So, if we are talking about age limits we have to see how "minor" is defined and look at the statutes which this Bill affects, Section 286 (b), Section 287 (b), and Section 289 (h)(i). Section 261.5 defines "minor" as a person under the age of 18 years. The other sections concur with this. If the victim is under 14 then the sections above specify they would be charged under Section 288 instead which requires mandatory registration as a sex offender in all cases.
So you would be correct if you said they can change the definition of a minor. If the California Legislature agrees on it they can do it. But no other state has a higher age of consent than California and they have not changed it since 1872. But if that's what they decided then they could do it, and when this Bill and other statutes refers to "minors" it would mean something different.
Think of it in terms of a computer program where you have your global definitions and wherever the variable is referred to in various sections of the program it has the meaning specified in the global definition. So, when you change the definition the meaning changes throughout the program. It is the same idea. So this Bill has no age limits. The age limits are decided by the definition of "minor" elsewhere..
Simon : If this law doesn't affect any consequences, then why have it?
Mr Finkelstein was referring to prepubescents and I said this lawl does not affect the consequences for anyone who commits a sexual act with a minor under 14. The law has consequences for those included in sections 286, 287 and 289 of the Penal Code as referred to above.
So this Bill has no age limits. The age limits are decided by the definition of "minor" elsewhere
Exactly. It's a trick to make creeping legislation easier - you can make a major change in a way that plenty of fools will defend as no big deal along the way, when it is a big deal.
Because a threshold for the age limit could easily have been added. The fact that it wasn't is deliberate.
Your defence of it is typical Motte-and-Bailey tactics - you retreat to convenient example of a 17 + 18 year old couple which no one that I'm aware of has any real concern over.
Exactly. It's a trick to make creeping legislation easier
If anyone wanted, they could have simply changed the definition of 'minor' without first changing this bill. The change that was now passed has absolutely no effect on a 'possible' (lol) change of the definition of 'minor'.
Because a threshold for the age limit could easily have been added. The fact that it wasn't is deliberate.
Of course it was. It is much more efficient for both reading and maintaining laws and bills when common terms are defined in one place, instead of in every single bill (or sentence) where the term is used.
you retreat to convenient example of a 17 + 18 year old couple which no one that I'm aware of has any real concern over
How would you propose to write a bill that mirrors the situation of a 17+18 year old couple that 'nobody has any real concern over', and still is strict enough for your liking?
Simon : you retreat to convenient example of a 17 + 18 year old couple which no one that I'm aware of has any real concern over
The reason I give that example, Simon, is exactly because that makes it clear why discretionary registration as a sex offender is preferable to mandatory registration. Discretionary registration allows the judge to decide in the case of the 18 year old that he is not required to register as a sex offender, and decide in a case where the age difference is unacceptably greater that the perpetrator is required to register. Whereas the situation before this Bill which required mandatory registration does not allow for that distinction.
I explained in a previous post on this thread that this debacle arose in a case involving a 22 year old who had voluntary oral sex with a 16 year old. The review by the Superior Court makes the point quite well:
At the sentencing hearing, defense counsel argued that under the circumstances of this case, defendant should not be subject to mandatory lifetime registration as a sex offender. Counsel said: It`s kind of ironic, because if he had actually had sexual intercourse with [the minor] and was charged and convicted of statutory rape, he would not have to register under 290 of the Penal Code. It seems to me that his conduct is less serious in that sort of a situation, yet the statute seems to suggest that he is required to register for life. I think that is a violation of equal protection under the laws and a violation of the California Constitution . . . .
The prosecutor responded that he would have no objection if defendant, after completing probation, were to ask the trial court to have his felony conviction reduced to a misdemeanor and to delete the requirement of lifetime registration as a sex offender. The trial court asked: Doesn`t it [the lifetime registration requirement] seem a little out of whack here? The prosecutor agreed: I think the law is out of whack. But that`s the law. The trial court observed that in applying the registration requirement here, the law did appear to be out of whack, but said it could not find on the face of it that it`s unconstitutional.
How would you propose to write a bill that mirrors the situation of a 17+18 year old couple that 'nobody has any real concern over', and still is strict enough for your liking?
Let's start with something simple & formulaic. Take the victims age, subtract 10, double it and add 11. Anyone that age or older is prosecuted. Add 13 instead ... anyone that age or older is a registered sex offender. Add 15 instead ... anyone that age or older is executed. All unless there are exceptional circumstances (e.g. mentally handicapped).
Age Pro Reg Exc
11 13 15 17
12 15 17 19
13 17 19 21
14 19 21 23
15 21 23 26
16 23 27 29
17 25 29 33I'd probably lower the limits at the lower end and 10 or younger ... "do not pass go, do not collect $200", sit in this nice chair that we're going to plug in. Some limits would change based on the circumstances - e.g. position of trust / authority over a child (such as a teacher) where grooming could have occurred would have stricter limits. The upper limits would reduce toward the higher ages. I couldn't be bothered coming up with a formula to account for those - I think they should be specified individually but try to have things continuous (and adjust pro-rate by actual age)
I think this is a better start than just "minor" and "10 years" as it doesn't account for the differences along the spectrum of ages.
Simon : I think this is a better start than just "minor" and "10 years" as it doesn't account for the differences along the spectrum of ages.
Therre is much to recommend there, Simon, and I appreciate there may still be a bit of tweaking to be done, but there will always be circumstances where the discretion of the judge is a more just solution than mandatory guidelines for registration as a sex offender.
For example, consider the case I refer to in my previous post. The circumstances were that the defendant met his 16-year-old female victim in an Internet chat room. After chatting with the victim a number of times on the Internet and speaking to her by phone, defendant met her and her young friend at a beach. Defendant brought rum and orange juice, which the girls drank. The victim`s friend got drunk and sick. Before taking the girls home, defendant told the victim, you owe me something. The victim orally copulated him.
In your proposed guidelines he would not have been prosecuted in the first place, and would certainly not have been required to register.
Also, comparing your table with current legislation, registration is mandatory (as you also have it) when the victim is 11, 12, 13, 16 and 17 and is at the discretion of the judge when the victim is 14 or 15.
Any legislation needs to take into account the fact that there will be consensual activity between different ages and not all of it is coerced or forced.
At the same time there are cases where someone is acting in a predatory fashion and the person who is more developed, older, has more money or whatever has an unfair influence over someone else.
The law should have guidelines, a starting point, and then factors that alter those thresholds. One would be alcohol - if the sex only happened as a result of inebriation then that is not consensual and shouldn't be treated as such, so the thresholds should come down.
But the allowances for "personal choice" should become less as the victim becomes younger, to the point that there is no excuse - e.g. if someone is having sex with a 10 year old and they are at least 6 years older than them (a significant difference in development between those) then the perp should be facing hard time or death, the boundary for those depending on the exact age and circumstances.
Take the victims age, subtract 10, double it and add 11. Anyone that age or older is prosecuted. Add 13 instead ... anyone that age or older is a registered sex offender. Add 15 instead ... anyone that age or older is executed.
Well, apart from the death penalty part I think this is an interesting approach.
And right away it also becomes clear how hard it is to fix a reasonable, coherent and consistent approach in words.
For example, in your approach a 17 year old isn't considered mature enough to consent to sex with a 25 year old, and at the same time the death penalty is considered a proper punishment for other (or maybe even the very same!) 17 year olds.
I accept that your proposal is just a quick (yet interesting!) example. I'm also not pinning you down on it. Just pointing out how hard it is to put reasonableness into rules.
And in the end I guess we all want the same: protect the vulnerable from abuse, and yet not victimize those who who aren't abusers. It's jsut that we need to find ways to agree on how to do that.