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Judge Strikes Part of Utah’s Polygamy Ban

Never underestimate the cultural influence of reality TV. The popular show “Sister Wives,” for example, recently led to a significant change in the polygamy laws of Utah.

Sister Wives is about a man, Kody Brown, his four wives, and his 17 children. The Brown family are fundamentalist Mormons who claim polygamy is part of their religion, although the Church of Latter Day Saints formally disavows polygamy today.

Sister Wives Polygamy LawThe marital status between the four women and Brown is a little more complicated than it appears at first. Brown only has a marital license with his first wife, Meri. Brown has a common law marriage with Christine and Robyn, both of whom he has been “married” to for 16 years. Brown and his latest wife, Janelle, recently held a marriage ceremony together, but Brown does not hold a marital license with Janelle. Janelle has two children from a prior marriage.

Brown challenged Utah’s polygamy ban in 2011, shortly after “Sister Wives” began broadcasting on the airwaves. Utah, like most states, prohibits individuals from holding more than one marriage license or holding a marital license with more than one person. However, due to the state’s history, Utah goes further than most states by criminalizing “cohabitation” with a person or persons which resembles a marital relationship.

Judge Waddoups, the trial judge presiding over the case and a George Bush appointee, ruled that the cohabitation clause was unconstitutional. Specifically, the judge held that the cohabitation law violated free exercise of religion and invaded the privacy and liberty rights of the Brown family. However, Judge Waddoups left the other half of Utah’s polygamy law untouched. Although it is now legal to live in Utah with a mistress as a spouse, the state won’t recognize more than one spouse.

Should polygamy be recognized by the state if all parties consent to the relationship(s)? Although proponents of same-sex marriage will deny this case has anything to do with their movement, Judge Waddoup’s 91-page decision is a product of the homosexual rights movement. Indeed, Browns’ attorney relied on the Supreme Court case which struck down homosexual sodomy laws when arguing that the cohabitation law should be overturned. Judge Waddoups compared polygamy to “an unmarried man who chooses to have intimate relationships with three women.” Although the state would not sanction the unmarried man’s relationships, the state would not punish the man, or the women, for engaging in such relations.

This is an argument for decriminalizing polygamous lifestyles, but it still is not an argument for recognizing polygamy. State recognition of polygamy will not happen, although social conservatives are still wrong to argue that ‘traditional’ marriage or protection of children is the reason. Unlike same-sex marriage, marriage with multiple partners would require complete renovation of our legal system, especially if polygamous marriages could be recognized as common law marriages. It is easy to replace the word “husband” or “wife” with “spouse.”

For polygamous relations to be recognized by the state, federal tax law, estate law, and spousal communication privileges would all have to change to make room for multiple person marriages. Completely re-engineering our legal system to accommodate polygamy would be challenging, to say the least.

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But That Rape Occurred 40 Years Ago!

Roy Harper, a popular folk singer who performed with Pink Floyd, has been accused of multiple counts of statutory rape and indecent assault involving a 12-year-old girl and two girls under 14. His defense against these charges: “But those events occurred 40 years ago!”Roy-Harper

Statutes of limitations (SOLs) are an important part of our legal system. Thanks to SOLs, you can’t be punished for a crime after a certain amount of time has passed. In effect, SOLs are a type of affirmative defense: “Yes I committed the crime, but the incident happened half a lifetime ago!”

As useful as SOLs are, they do not cover every type of crime or personal injury case. In particular, murder is not protected by a statute of limitations. Defendants cannot answer a murder charge with, “But I killed her 40 years ago!” That would be a ridiculous defense because murder is the most severe crime possible and the defendant could still pose a danger to society.

If SOLs are laughable in murder cases, why do they exist in rape cases? California, for instance, maintains a 10 year SOL for rape (with certain exceptions). In other words, if you commit rape in California and aren’t caught for 10 years, then you are forever free from the possibility of criminal charges.

Although Roy Harper has been charged in an English court, the case still raises interesting questions for Americans. For example, just last month, the governor of California vetoed a bill which would have extended the statute of limitations for victims of child molestation in civil cases.

Since rape is a crime about power, it is not uncommon for rape victims to not come forward until years after the crime is over. Rapists often tell their victims that no one will believe them even if they do come forward. Particularly in child molestation cases, the victim will believe the rapist. After all, the rapist is often a priest, coach, or respected member of society. Who would believe a little child over Jerry Sandusky or, possibly, Roy Harper?

Given that the claim, “But that occurred 40 years ago!” is an irrelevant defense in a murder case, I propose that the same logic should apply to rape cases. Perpetrators of rape should be held accountable for their actions despite the passage of time.

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Can I Be Arrested for a Facebook Post?

The short answer is yes, you can be arrested for what you post on social networking sites such as Facebook, Twitter, Instagram, and Foursquare.

There have been quite a few instances recently where Internet posts led to arrests. These arrests were not usually the results of systematic investigations by the police or the National Security Administration. Instead, arrests are usually prompted by an individual’s friends, followers, schools, or employers who report dangerous or illegal activity.social networking & crime

Arrests based on social networking come in many different shapes and sizes, including the blatantly provocative tweet by Wanda Podgurski: “Catch me if you can.” Ms. Podgurski was arrested and convicted for nearly $750,000 worth of fraudulent disability claims, but could not be found—that is, not until authorities eventually tracked her down based on the tweet.

Even if you try to post anonymously or to only a select group of people, you’re not always in control of who can see what you write. On Facebook, for example, there is a name policy that people must use their real names. While this does not ensure that people are being honest and using their real names, generally people trust the service and use something resembling their real name that will identify them in the real world.

When you are suspected of criminal activity, police can begin to gather evidence against you and can obtain permission or a warrant to see what you have been posting. Courts have determined that what you post online is public information and can be used against you in a court of law. Posting to only a group of friends is similar to speaking to that same group of people.

Here are some of the common ways that people have gotten arrested:

Threats of Violence

One very serious way that people have been arrested is for threatening violent activities.  Jarvis Britton was arrested for threatening the President’s life, when he tweeted, “Let’s kill the president. F.E.A.R.” The initials refer to the militia group Forever Enduring – Always Ready, which Mr. Britton was affiliated with.

By threatening violence, you could be arrested for such crimes as incitement, making terroristic threats (a felony), and inducing panic.

Cyberbullying

There have also been a number of cases where children or their parents have been arrested for Cyberbullying. Most recently, two girls were arrested for aggravated stalking after a girl they had been harassing online committed suicide. What is most horrific is that one girl plainly admitted in a Facebook post that she bullied the victim and didn’t care that she killed herself.

States have different cyberbullying-specific laws, as well as traditional harassment and stalking laws that may be used to arrest someone for online activity.

Evidence of Criminal Activities

Police can look online for evidence of criminal activity. In one case, an 18 year-old posted, “Drivin drunk…. classsic ; ) but to whoever’s vehicle i hit i am sorry. : P” which lead to his arrest after at least two of his Facebook friends reported him.

In other cases, police have seen evidence of child harassment and endangerment, illegal sales of drugs and/or weapons. Recently, the singer Rihanna posted several tweets and Instagram photos of her activities in Thailand, which has led to arrests for possession of protected animals, obscenity, and operating a venue without a permit.

Protests

In 2009, Elliot Madison was arrested for tweeting about police movements during a protest. Police argued that he was interfering with their ability to arrest people at the protest, and the charges were later dropped. Protests are a particularly sticky area of the law because free speech may be at issue, but Mr. Madison’s case shows that you may be arrested for your online activity during a protest.

Contempt of Court

Several jurors have been arrested for contempt of court when they posted information about the trial they were witnessing online. In one particularly odd case, a male juror “friended” the female defendant during trial. This is especially serious because it could lead to a retrial or overturned verdict. Because of this, lawyers may ask for your Twitter handle or Facebook URL during jury duty.

In another incident, an 18 year-old woman joked about receiving a DUI on Facebook. She was charged with contempt of court when she refused to delete the post, but apologized after serving a two-day sentence.

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Gunman Murders a Passenger on a Crowded Train – And Nobody Notices

If you were on your cell phone, would you notice a homicidal maniac waving a .45 caliber pistol in the air? Dozens of passengers on a San Francisco train did not. Video cameras revealed that almost all the passengers had their eyes glued to the glowing screens in the hands and had headsets on their ears.sfpd_homicidesuspect

Video cameras revealed that, in their midst, a thirty-year-old man was playing with a gun. The man was repeatedly drawing his gun and pointing it down the aisle. After half a dozen times of this, the man put a bullet into a younger man exiting the bus. The killer then exited the vehicle himself.

The next day, police arrested Nikhom Thephakaysone as the alleged suspect. They also identified the victim as Justin Valdez. Prosecutors are lucky the entire incident was caught on camera, since it is questionable whether any of the passengers on board the bus could be called witnesses. In order to serve as a witness, a person must have personal knowledge of the event and be able to recall that knowledge. Thephakaysone’s attorney could bar almost all of the passengers from testifying in court since the only thing the passengers witnessed was a loud “bang” and Valdez’s body.

The fact that humans can only focus on one task or event at a time is well documented. There is a YouTube video which explains the problem of human awareness in an entertaining manner. If you haven’t seen it yet, you should.

The goal of the test is to spot the moon walking bear even though you’re focused on the ball being passed. It is the same problem in real life. You’re totally focused on the YouTube video in your hand that you don’t see the car changing into your lane. As a result, most states have passed laws restricting the use of phones while driving. However, the danger from distracted driving isn’t that the driver is trying to multitask and failing; the danger is that the drivers are not paying attention to what is taking place around them.

Failure to pay attention to our surroundings is hardly restricted to driving. A 2008 study revealed that pedestrian cell phone users were more likely to miss traffic signs. In 2010, statistics came out that about 1,500 pedestrians were injured because they were too focused on their phones rather than the world around them. The pedestrian accidents reported in 2010 ranged from the expected, such as being hit by a car, to the Saturday morning cartoon, such as falling into an open manhole or falling into a fountain.

At first glance, the legal implications of inattentive citizens were limited to personal injury accidents. Cell phones created more automobile and pedestrian accidents, as described above, but they also barred those same accident victims from winning court battles. Contributory negligence and comparative negligence limit the amount of money these accident victims could collect since it is extremely easy for the other side to point out that the “victims” were negligent themselves. It is difficult to win a negligence lawsuit if you ignored all the warning signs on your way towards the open manhole.

Until this year, few experts would have believed that the problem of distracted people would apply to criminal law as well. It does though, and it appears that the problem of distracted people applies in the worst way imaginable.

Prosecutors were lucky that there was a video camera available. If this murder had taken place in a location without video cameras, such as a busy street, it is doubtful that the prosecution would have enough evidence to even identify the killer. The lesson here is clear: Don’t be so focused on your smartphone that you can’t see Freddy Krueger until he stabs you in the chest. Everyone around you will be too busy with their cell phones to notice.

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Can the Police Answer Your Phone and Impersonate You?

Andres Lopez-Cruz was in big trouble when a pair of border patrol agents stopped his car in 2011. Lopez was driving through Highway 80 when the agents stopped him. The agents pulled Lopez over because they believed Lopez was tapping his brakes too much. During questioning, one of the agents asked to look at and search two cell phones in the back seat. Lopez claimed that the car and the phones belonged to a friend, but Lopez gave the agent permission to search the phones anyway.

car-search

While looking through the phone, a call came. Rather than inform Lopez that he had a caller, the agent decided to answer the call in Lopez’s place. A woman asked the agent “how many did you pick up?” The agent replied “None.” The woman hung up and a second caller asked “How are things going?” The agent said “I didn’t pick anyone up; there are too many border patrol agents in the area.” The woman called again, and under the impression that the agent was Lopez, instructed the agent to pick up a couple of undocumented immigrants from an address in San Diego.

The agents arrested Lopez and the two illegal immigrants waiting for Lopez in San Diego. Lopez argued that his 4th Amendment right against unreasonable search and seizure had been violated. The government offered three reasons why the impersonation should be legal. First, Lopez disclaimed ownership over the phones and thus forfeited any expectation of privacy. Second, Lopez had given the agent permission to answer the phones when Lopez consented to the phone search. According to the government, there is no difference between answering an incoming phone call and reading an incoming text message. Finally, the government contended that Lopez’s consent was the equivalent of a search warrant. A search warrant would have allowed the agents to receive the incoming calls without violating the 4th Amendment.

The Ninth Circuit panel ruled 3-0 that the phone calls must be excluded from trial. The judges held that Lopez had an expectation of privacy because he had possession of the phones and had the right to exclude the officers from searching the phones. They also ruled that Lopez’s consent to search the phones “did not extend to answering incoming calls.” The agents exceeded the scope of Lopez’s consent. Finally, the three judge panel rejected the idea that consent could be a substitute for a court-issued search warrant.

So what is the take away from this case? If a driver denies police officers permission to search a vehicle, the prosecutor has to prove that the police had probable cause to search the vehicle. Prosecutors have to prove that a criminal defendant is “guilty beyond a reasonable doubt” in order to prevail. Although adding another element of proof to a prosecutor’s case might not seem like much, that extra requirement does require more evidence and will burden the government’s ability to harass drivers on the road.