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NFL Domestic Violence Sparks Review of Union Policy

In the wake of a string of instances of alleged domestic violence, it’s clear the NFL has an inconsistent policy for when a player may or may not be disqualified. One player may be suspended for a season, another for several months, another may be suspended for two games, and another may not be suspended at all.

NFL Domestic ViolenceBy contrast, players that have been caught for drinking and driving, or possession of drugs like marijuana, have received specific and occasionally stiffer penalties.

The NFL’s inconsistent response to domestic violence issues hasn’t been very popular among the general public, and understandably so: if a player is suspended for one year due to a legal issue with controlled substances, but a player who is facing domestic violence charges is only suspended for two games, it communicates that domestic violence is inherently less awful than drug abuse offenses.

The NFL and Commissioner Roger Goddell seeks to change the league’s policy on suspension. However, doing so may be problematic. As it stands, the league wields the unilateral power over punishment and appeals.

The biggest hurdle may negotiations with the players unions. For example, policy decisions generally cannot just be made on a whim. The NFL and player’s union has been negotiating for years concerning the leagues drug policies; there is a general concern that similar negotiations may be conducted concerning a new domestic violence policy. This would mean it could be years before an actual policy is in effect.

Which raises one of the biggest questions regarding these unions: what’s the point? When unions were created, they served a purpose of protecting the rights of factory workers and other laborers who may not have had a voice on their own, but found strength in numbers.

These days, and specifically with respect to individuals who are typically making at least six figures, with the prominence of consumer protection and worker’s rights laws, it’s odd to imagine how collective bargaining and unionization protects their rights, as opposed to simply acting as an unnecessary step in an already complicated process.

Behind Texas Court’s Decision to Strike Down “Upskirt” Photography Ban

The recent Texas Court of Criminal Appeals ruling regarding “upskirt” photography – pictures taken covertly under women’s skirts in public and without their consent – has understandably drawn much outrage. The case has been widely described as ruling that it is legal to take these kinds of photos, which has generated a great deal of shock and anger.

texas court upskirt photo banThe court’s ruling did strike down a statute that would have outlawed this practice under the First Amendment’s Free Speech protection. However, a closer examination of the court’s decision and the statute in question demonstrates that this outcome was, more than anything, the result of extremely poor statutory drafting on the part of the legislature.

A law is unconstitutional under the First Amendment when it is overly broad. That is, even if the law aims to achieve a permissible purpose, if the language used encompasses substantially more conduct than intended, the law is unconstitutional.

The portion of Texas Penal Code Section 21.15 (the “improper photography or visual recording” statute) that was called into question was subsection (b)(1), which stated photographing or electronically recording a person is a crime if the photo or recording “is made without that person’s consent” and “made with the intent to arouse or gratify the sexual desire of any person.”

The State Attorney argued that the First Amendment did not apply because the statute did not target the “speech” (the photograph), but rather the “act” (the taking of the photograph). The State Attorney further argued that, even if the First Amendment did apply, the statute was limited by the consent requirement and, thus, not overly broad.

Under the State Attorney’s interpretation, if the photograph is of an area that is not exposed to the public, (such as a photograph taken up a woman’s skirt) the improper-photography statute criminalizes the behavior, if done with the requisite intent (to arouse or gratify sexual desire). However, if the photograph is of an area that was exposed to the public, (such as a photo of a woman wearing a swimsuit) the statute does not apply.

The State Attorney is bending over backwards to make this statute work, essentially asking the court to approve of an entirely different version of the statute than what is “on the books.” The argument that the act of photography (as opposed to the photo itself) is not a form of speech that invokes the First Amendment is nonsensical; and the State’s interpretation of the term “consent” is extremely broad.

The Defendant argued that, while the legislature has a legitimate interest in prohibiting “upskirt” photography, the statutory language used “fails to distinguish those situations from merely photographing a girl in a skirt walking down the street.” The court seemed to agree.

It is possible for a court to “save” an overly broad statute by utilizing a narrow interpretation. However, the Texas court felt that the “narrow interpretation” offered by the State Attorney – narrowing the statute, ironically, by using a broad definition of “consent” – was not possible in this case.

The court had previously construed “consent” as meaning “an actual or real agreement after thoughtful consideration,” and felt that the idea that a person consents to be photographed by merely appearing in a public place ran completely counter to this definition.

The court was concerned that imposing a definition of consent as broad as the one proposed by the State Attorney, when no such definition was provided in the statute, invaded the legislative domain and diminished the incentive for the legislature to draft narrowly tailored statutes in the first place. The court was also concerned that a very broad definition of “consent” might be a dangerous concept that, if utilized in this case, might be expanded to apply in other scenarios.

The court concluded by agreeing that a person being photographed in an area not exposed to the public, such as up a skirt, did violate the State’s legitimate interest in privacy, but pointed out that the statute in question was overly broad and did not even contain language addressing privacy concerns.

The court used the next subsection of the statute – Section 21.15(b)(2) – as an example of a provision narrowly tailored to address privacy interests: It is a crime to photograph or record a person in a bathroom or private dressing room. The court also offered some examples of ways that the legislature could have tailored the statute to make it less broad; such as requiring a person’s privacy interest to be invaded or prohibiting specific activities, such as “upskirt” photography.

These suggestions raise the question: Why did the legislature choose to focus on the sexual gratification of the perpetrator, rather than the privacy interest of the victim? What if the intent of the photography was not sexual gratification, but instead to mock or humiliate the victim? Should that victim be entitled to any less legal protection?

The court repeatedly refers to the statute as “protecting an individual from being the subject of someone else’s sexual desires,” stating that this is an unattainable goal. In fact, the statute was actually intended to protect individuals from dissemination of invasive photographs of their body parts by strangers. Clearly, the “sexual gratification” language in the statute confuses this purpose.

Thus, after a closer look, this case seems to illustrate the importance of a carefully drawn statute more than it does the ambivalence of the court towards privacy. It does not appear that the court is declaring “upskirt” photography legal or in any way condoning the behavior. The problem is that the legislature drafted a statute that was overly broad, while simultaneously failing to encompass situations in which personal privacy is invaded with non-sexual motives.

What is needed is a statute that encompass the entirety of the behavior the legislature is seeking to prevent, without also encompassing a wide variety of other behaviors.

Delaware Now Allows Social Media Accounts to Be Inherited

A new law enacted in Delaware this year allows executors and heirs to obtain the social media passwords to decedents’ social media accounts. Prior to the passage of this law, social media accounts expired upon the death of the account-holder. This was the case even in those instances where the decedent’s friends and family members knew the passwords to those accounts. They were prevented from accessing the accounts by the terms of use of social media companies, including Facebook, which have restrictions regarding the sharing of accounts.

social media accountsWhat Are the Provisions of the New Law?

The new law, which is the first of its kind, is called the Uniform Fiduciary Access to Digital Assets Act (UFADAA). In addition to acknowledging social media accounts as property, the law grants to guardians who are caring for disabled persons, the right to manage their social media accounts. It also gives this right to executors, agents under powers-of-attorney, and trustees in the same way that fiduciary trustees can gain access to bank accounts, financial and tax documents, and medical records, contingent upon a will, trust, or power-of-attorney. Another right possessed by the decedent is the right to prevent the heirs from ever opening or modifying their online accounts.

Furthermore, the new law allows title to digital assets to be held by a trust. Referred to as a digital asset trust, this type of trust may well become an integral part of the estate planning for those individuals who possess digital photography , artwork, or manuscripts, or computer code, and who would like these assets to be managed in such a way that their family members and friends can benefit.

How Will the Law Be Applied?

The law applies solely to residents of Delaware, and it will be interesting to see if other states will follow its lead. While some states already have laws in place permitting the decedent’s personal representative to access online accounts, these laws are far more limited than the one enacted in Delaware. Those states with a limited version of the law are: Connecticut, Idaho, Indiana, Nevada, Oklahoma, Rhode Island, and Virginia.

A decedent whose will or trust is governed by Delaware law will be able to have his or her online accounts accessed by the personal representative of the estate. However, a decedent whose will or trust is governed by any other state will be unable to have the same access granted to the personal representative. It is irrelevant that several technology companies, including Facebook, Twitter, and Google, are incorporated in Delaware.

Potential Invasion of Privacy

Despite the benefits of the law, there is some opposition due to the potential invasion of privacy of third parties who maintained contact with the decedent. Such communications to the decedent include those that are considered to be highly confidential from people who are still living, including patients of deceased physicians, psychiatrists, and members of the clergy. These individuals would likely be understandably upset upon learning that a personal representative was reading their emails.

Nevertheless, the benefits of the law appear to far outweigh the disadvantages in that the decedent’s heirs and beneficiaries will have access to online accounts that were previously beyond their reach. Although many of these accounts may not have much in the way of monetary value, the heirs may attach some emotional value to them.

Statutory Rape – Everyone Loses

Statutory rape laws are supposed to protect underage girls from predatory men. Ironically, statutory rape puts all the focus on the men. If society punishes men for engaging in sex with minors, then there won’t be underage pregnancies. From the state’s point of view, it makes complete sense. If only it were that simple.

statutory rapeStatistics appear to bolster the idea that statutory rape discourages adolescent pregnancy. In 2012, the teen birth rate in the United States was 29% of all births in the country. This is a drop from the 1990s, when the teen birth rate was 60% of all births. But what about the 29% of single mothers—girls under the age of 18—who do get pregnant? Abortion is permitted in some states, but abortion is controversial at best.

If a teenage girl does give birth, society wants to punish the father. But here’s the catch 22. If we send the father to jail for statutory rape, then he won’t be able to make money to pay for child support. While trying to protect teenage girls in general, statutory rape laws harm young mothers and their infants.

It is really difficult for a man to make money for his child if he is in jail for creating that child. Even when the father gets out of jail, he might be considered a sex offender. Registered sex offenders aren’t popular with employers, landlords, or the public in general.

This means that the adolescent mother is stuck raising her son or daughter on her own. In the modern United States, a single income household can’t support a child—especially if the single income had to drop out of high school to have the child. Chances are the child will grow up to be part of the same cycle that their parents found themselves in.

Is There An Alternative?

First, statutory rape laws aren’t going anywhere. Statistics support the idea that they keep teenage pregnancy down. Even without statistical support, too many voters would be worried about child molesters for statutory rape laws to be abandoned.

The question is whether men convicted of statutory rape should be able to share custody of their children. The way I phrased that question probably lends itself to a certain answer (“Yes they should!”). However, the truth of the matter is that this type of case is best handled on a case by case basis. Obviously, child molesters who are willing to lure young girls to bed might do the same to their daughters. On the other hand, if the father is a twenty-something year old who is just in over his head, society might want to set aside its own judgments for the best interests of the child.

Statutory rape often looks like it’s designed to make society feel better about the sexual nature of adolescence, even though that comfort comes at the expense of infants who need a mother and a father. The father might be naive, but a naïve father is better than no father.

Police Detain Actress for Prostitution after She’s Seen Kissing Her Husband

When a police officer walks up to you and asks for identification, do you have to present it? On one hand, doing as requested could save you a lot of headaches and hassle. On the other hand, if law enforcement stops every other person, we might begin to wonder if the police aren’t just abusing the power. Danièle Watt’s story provides an interesting example of the latter.

daniele wattOn September 11, Danièle posted on Facebook that she had been detained and handcuffed in North Hollywood because she had been seen kissing her husband, Brian Lucas, in public. Danièle and Brian suspect that someone had reported them to the police because the interracial couple looked like a prostitute and client. When the police arrived, Daniele was on her cell phone with her father. When the officers asked for ID, Brian presented his ID but Danièle refused.

The officers forcibly handcuffed Daniele, who cut her wrist during the commotion. The police officers held Danièle in the back of the squad car until they realized Danièle had starred in the movie Django Unchained.

Do You Have to Present Police with Identification?

Can the police randomly ask people for identification? Like most legal questions, this depends on the situation. If the police stop a driver or an airline passenger, the police have the right to ask for identification. Since the police have the right to ask for a valid license when they pull over a vehicle, they also have the right to ask for proper identification at the same time. Airline passengers are a larger stretch, but courts have ruled that safety concerns (especially after 9/11) give officers the right to stop passengers for identification. Since neither driving nor flying are rights, there is less legal protection that people can rely on.

Wait, you might say, Daniele wasn’t driving or flying. She was just standing around in public when the police stopped her. Well, Daniele had every right to refuse the police request for identification. If a person isn’t engaged in a licensed activity and/or interstate travel, fourth amendment protections against unreasonable searches are stronger. In other words, police cannot search a person without a warrant or reasonable suspicion.

Since Daniele didn’t have an outstanding warrant in her name, the only way the police could demand rather than request identification was if they had a reasonable suspicion that she was doing something illegal. Currently the police department is denying the incident ever happened, despite photos to the contrary. For argument’s sake, let’s assume the police will argue (and they probably will) that they had a reasonable suspicion: they thought Danièle was a prostitute.

This is where the true value of forcing police to prove they had a reasonable suspicion comes to light. Is it reasonable to assume that a woman is a prostitute because she’s kissing a man in public? Of course not. There are plenty of alternative explanations, like the fact the “prostitute” and the man are dating or married. Aside from Danièle and Brian’s appearances, which the police can’t use because then it would be racial profiling, there was nothing distinguishing Danièle and Brian from every other couple walking the streets of LA County.

Some people might say that Daniele could have avoided this entire incident if she had merely given the police her identification when requested. The problem is that unless the police have a reason to demand identification, the police have no authority to compel that information and Daniele had every right to her privacy. The burden was not on Daniele to obey. The burden was on the police to establish that they had reasonable suspicion, which they clearly could not.

There is one thing Daniele could have done to confirm whether the police suspected she was doing something illegal. If anyone is ever stopped by police, they can always ask if they can leave. If the police say yes, then by all means walk away. If, however, the police say no and demand your identification, then you should probably present ID. They might not be able to prove their suspicion right then and there, but you can contest the charges in front of a judge and have the “suspicion” thrown out.