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Federal Child Pornography Law Costing States Real Money

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The aim of the Adam Walsh Child Protection and Safety Act of 2006 is to protect children by forcing sex offenders to register, and making the sex offender registry publicly available. In the case of juvenile sexting, though, the “victim” and the “perpetrator” can be the same person. Registering teens as sex offenders and subjecting them to public shame further victimizes these kids.

This result is not something that anyone wants. But, there is money involved. So the decision to protect teens from harsh penalties for sex offenses becomes more difficult in cash strapped states.

States that do not comply with the federal law suffer a 10% loss of law enforcement grant money from the federal government. How much money is that?

Similarly, Florida receives almost $2 million for complying with the federal law.

Compliance comes at a cost though. The federal law requires states that wish to receive grant money to register juveniles as sex offenders for life, if they have committed an aggravated sex offense. This requirement includes registering children as young as 14.

Considering the diminished capacity of minors, the consequences of being registered as a sex offender, and the possibility of rehabilitation, the federal law is extreme.

To date, only four states have complied with the federal law: Florida, Ohio, Delaware, and South Dakota.

This February, South Dakota took a proactive approach that might allow them to keep the federal grant money without having to register teens for sexting. The legislature there considered a bill that distinguishes aggravated sexting from a lesser offense, and prohibits the state from registering minors as sex offenders “solely for committing the offense of juvenile sexting or aggravated juvenile sexting.”

Whether South Dakota’s approach would allow it to remain in compliance with the federal law is yet to be seen. If it works, that legislation might be adopted by other states, as they weigh concerns about funding against the futures of teens.

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Court Sides With Father: Vaccination in Best Interests of Child

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If you’re a fan of rational, science-based medicine, here’s some good news: a family court in Florida has ruled that, all other things being equal, it’s in a child’s best interests to be in the custody of a parent who would vaccinate the child, as opposed to one who would not.

If you’ve read this blog before, you probably know that, when making custody decisions, a court will base its decision entirely on what’s in the best interests of the child. Obviously, there’s a practically infinite number of factors that can be considered when making this determination. One of the big ones, however, is which parent can be expected to make sound decisions regarding the child’s physical health.

You may have read that there’s a “controversy” over the use of vaccines. I put “controversy” in quotes because, in the medical community, there’s an overwhelming consensus that vaccines, in addition to being extremely safe, are highly effective at preventing numerous infectious diseases.

The widespread use of vaccines is routinely cited as one of the greatest public health achievements in our time, and for most people in the developed world, potentially fatal illnesses like measles, mumps, polio, and whooping cough, are a distant memory. And thanks to the smallpox vaccine, that deadly virus has been eradicated worldwide, with the last documented case occurring in 1978. Before it was eradicated, smallpox killed several million people each year, almost entirely in the poorest countries on Earth, so eradication of smallpox has, by this point, saved millions of lives.

However, over the last decade or so, there has been a movement (mostly in the developed world, where most people currently alive don’t have any direct experience with the diseases that vaccines prevent) against the vaccination of children, largely based on the notion that vaccines might cause autism. The main study that is used to back this claim up was discredited long ago, and the doctor who conducted the study has even been accused of deliberate fraud. And several subsequent studies have found absolutely no correlation between vaccines and autism.

Furthermore, the chemicals used in vaccines which were claimed to cause autism were mostly phased out over the last few decades, resulting in no change to the rates of autism, strongly suggesting that there was never any causal link.

Despite all this, there’s still a small but fanatical movement dedicated to the claim that vaccines are more dangerous than, say, stepping outside onto your front lawn for a few minutes (“A plane might crash on me!”). A few celebrities are dedicated to convincing the public that vaccines cause autism, and they get far more media attention than people who advocate for vaccination.

Therefore, there are a large number of parents who have decided against vaccinating their children. In some communities, this has led to outbreaks of serious illnesses like measles and whooping cough.

So, it’s perfectly understandable that a court would side with a parent who would vaccinate their child, over one who would not. And I hope that other courts, when faced with this issue in the future, follow suit.

Remember, when a court is making a decision about custody, its main consideration is the well-being of the child. This takes precedence over the preference or convenience of either parent. When there is overwhelming scientific evidence that one course of action is far more beneficial to a child’s physical health (a major factor in well-being) than another, the court should go with the course of action backed by the evidence.

If, at some point in the future, some credible evidence emerges showing that vaccines are more risky than previously thought, it will be prudent to re-examine their costs versus benefits, which will affect future court decisions like this. Until then, however, all of the worst-case scenario “what-ifs” that are sometimes brought up about vaccines are nothing but speculation, which is definitely not the same as evidence.

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Will the Supreme Court Allow California to Ban Violent Video Games?

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It’s funny how the beginning of a new year can make everything feel so vibrant and full of possibilities.  After all, time is relative.  Our perception of it is based off of our calendars and clocks which we derived from our planet’s orbit.  But to other species, it’s determined by food availability, weather, sun light, and any number of other survival factors.  They seem to get along well enough without clocks and certainly don’t blow off fireworks or watch balls drop at midnight each time 365 days pass.

Yet for us humans, a new year holds so much promise.  Perhaps it’s because it’s the only time of the year where one can truly feel like they can see ahead at what’s to come, much like a hiker on a mountain summit looking off into the horizon to plot their course.

Sorry, I wasn’t planning to get this philosophical on you guys.  A new year always turns me into an armchair Socrates.

Anyway, the reason I bring this up is because I was going over the current 2011 docket for the U.S. Supreme Court and realized that this is the year the highest court in our land will be deciding whether or not to uphold California’s law banning the sale of video games to children.

After hearing oral arguments last November, the court’s decision for Schwarzenegger v. Entertainment Merchants Association is due out this year.  Both sides have recently written their own respective op-ed on the subject, with the bill’s originator Senator Leland Yee writing a piece in support and Activision Blizzard VP George Rose penning one in opposition.

grand theft autoIn case anyone out there isn’t familiar with this case, way back in 2005 Gov. Schwarzenegger signed AB 1179 into California law which made it illegal to sell violent video games to minors.  The video game industry argued largely that the new law violated the First Amendment, while supporters argued the bill was constitutional and a necessary safeguard to protect children.  Up until that point the video game industry largely regulated itself when it came to content ratings for their games, which were and still are provided by the Electronic Software Rating Board.

However, because the new California law would have criminalized selling violent games to minors, game developers would have less incentive from a profitability stand point to create games with any violent content.  Thus the law would have something of a chilling effect on creativity since if a developer can’t profit from games with any violent content, than there’d be less reason to make one.  And after a long legal battle, the case finally went up to the U.S. Supreme Court.

Now, both sides seem to have valid arguments.  In this day and age, video game development costs are on par with major motion pictures.  The industry itself is valued in the billions and therefore any laws of this kind could spell disaster for it and consumers who would suffer from poorer quality games (imagine if the only movies that were available had Hannah Montana in it).  Furthermore, the law is also somewhat unconstitutional as the film, book, and music industries provide products that contain equal if not more violence than found in video games and yet remain self-regulated.  On the other hand, though violence in any form of entertainment or media has yet to be definitively proven to cause violent behavior in children, video games with disturbing content shouldn’t be readily available to minors as they can be quite traumatic.

So it seems then that we’re at an impasse.  But, like most impossible situations in life, upon closer inspection they’re not always quite as impossible as they seem.

Though pundits and representatives from each side may want to make this law seem solely a legal debate in nature, the fact of the matter is that it’s not so black and white.  Really, when it comes to minors, regulation of any inappropriate content should always exist.  However, such regulation should be done by the parents or guardians of those children.  I’m reminded of the flack President Obama received when he told parents that they had to step up when it came to raising their children.  His words were simple: if you have a child, they are your responsibility.  Yet for some reason in this age of 24/7 news networks, his message became garbled into an attack against . . . who knows?  Everyone, I guess if you’re to believe Fox News.

Anyway, the point I’m trying to make is that when it comes to controlling what kids see or don’t see, the decision should be handed down by responsible parents rather than pushed off to the legislature.  After all, laws are only respected if people can see why they are important.

But what do you guys think?  As always, sound off below.

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Can You Sue For A Wrongful Death That Occurred Before You Were Born?

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Here’s a strange scenario: a man impregnates a woman with whom he had been in an on-and-off relationship for quite some time. A short time after finding out about the pregnancy, the man is exiting a house. Coincidentally, a group of police officers are moving in on the house in preparation for a drug bust. One of the police officers trips on a tree root, bumping another officer, who accidentally discharges his gun. The bullet strikes the man leaving the house, and he is killed.

After the child is born, he sues (with his mother acting on his behalf) the police department for wrongful death, even though the death happened when the child’s mother was only six weeks pregnant.

This is exactly what happened in New York. A court has just ruled that the child’s wrongful death suit against the county can go forward.

As far as I can tell, there is very little precedent for a lawsuit like this. First of all, the mother and the father were not married, so it’s not clear that she would even be able to sue for wrongful death. There’s no question, however, that a child can sue for the wrongful death of a parent, regardless of the parents’ relationship with one another.

However, the question of whether a person has some legal rights before they are born is incredibly loaded, and far more divisive than just about any other question in tort law. If you explore differing opinions on this legal issue, you’ll likely find that, in most cases, these differences are rooted in disputes of fundamental philosophy, on which there is rarely much middle ground.

However, there is generally some agreement that the legal right for a child to sue for injuries that occurred before his birth does not accrue until after his birth. This has been established in cases dealing with issues of “wrongful birth” or “wrongful life.”

So, if the wrongful act which occurred before the child was born clearly affects the child after he’s born, the child can sue. In this case, we have to look at what harm the child has suffered, and what harm the law actually recognizes as compensable in wrongful death claims.

As mentioned earlier, the child’s mother, not being married to the father, can’t sue for wrongful death, so she’s suing on behalf of her son. New York law apparently allows the child of a deceased parent to recover damages for lost financial support and lost parental guidance, companionship, and love.

While calculating the value of a lifetime of financial and material support can’t be done with perfect accuracy, we can usually get a likely ballpark figure of what the decedent’s lifetime income would be by looking at the decedent’s job and income at the time of death, its growth potential, and the decedent’s skills and education. Obviously, this isn’t a clear, objective look into an alternate universe where the decedent is alive, but it renders results that are sufficiently certain for a jury to award a dollar figure in damages.

Calculating the value of lost parental love, companionship, and guidance, on the other hand, is almost completely subjective.

However, it’s fairly common to award monetary damages for things like emotional distress, and pain and suffering. The exact dollar amount that constitutes appropriate compensation for those types of harm is impossible to determine objectively, as well.

So, what does this mean for the current case? It’s clear that this child is going to grow up without ever knowing his biological father. The law generally assumes that it’s in the best interest of every child to have two parents, until it’s proven that one of the parents is unfit. So, even though this child will have no basis for comparison as he grows up, as far as the law is concerned, he has still lost something, and is likely entitled to an award.

Hypothetically, what if, when the child was still very young, the mother married or entered a long-term relationship with another man, who turned out to be an excellent father figure? Could the child then be said to have suffered the loss (not having a father) that the money is meant to redress?

This raises a somewhat troubling question: suppose this lawsuit is successful, and the child recovers a large monetary award. In cases like this, an award of damages to a child is typically placed in a trust that the child will be able to access when he reaches a certain age, typically 18. If this happens, will the money be anything other than a windfall for the child? Or will he actually feel some vindication for the fact that he grew up without a father?

Still, tragedy, in itself, is not enough to warrant a civil judgment – there must be wrongdoing, and some compensable loss. There was clearly wrongdoing in this case: a man doesn’t get shot and killed for no reason unless somebody screwed up very badly. However, as discussed above, you could make at least a non-frivolous (though, admittedly, unlikely to succeed) argument that, from the child’s perspective, he hasn’t really “lost” anything.

Personally, I hope such an argument would fail. First of all, it discounts the simple fact that a man is dead for no reason. Secondly, we don’t know if the best case scenario (the child growing up with a strong father figure, even if it’s not his biological father) will actually occur. Just as we can’t award damages that are completely speculative, we can’t refuse to compensate someone for a loss because of speculative future mitigating factors.

Finally, the police seriously screwed up here, and civil lawsuits for misconduct are essential in keeping the police honest, and hitting police departments with large judgments should they engage in misconduct should deter such misconduct in the future.

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4-Year-Old Child Can Be Sued for Negligence in Bike Accident

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A 4-year-old is in a bicycle race with a friend. She crashes her bike into ankid's bikeelderly woman, who breaks several bones, and dies a few weeks later. The victim’s estate sues the girl’s parents, and also names the girl as a defendant. Should a 4-year-old girl be held legally responsible for what was an admittedly careless accident, but an accident nonetheless?

Well, one judge in New York thinks so (also seen in the NY Times, WSJ Law Blog, and ATL).

This is interesting, because young children are generally assumed to be incapable of committing negligence. For a quick refresher, negligence occurs when a person has a duty to adhere to a minimum standard of care, engages in conduct that falls below that standard, thereby causing an injury.

In ordinary cases, the standard of care for negligence is that of a “reasonable person.” Basically, this means that you have to act as a person of average intelligence, maturity, and prudence would in a similar situation. Insane people, and individuals of diminished mental capacity, are held to this same standard, even if they’re completely incapable of meeting that standard. That seems unfair to many people, but it’s the rule.

When considering if a child has been negligent, they’re held to the same standard, with one major difference: they’re held to the standard of a reasonable child of the same age. Obviously, the level of prudence that we should expect of a young child is very different from that expected of an adult.

Below a certain age, children are generally presumed to be incapable of negligence, since they’re incapable of forming any concept regarding safe and acceptable behavior. Generally, children under the age of 4 are conclusively presumed to be incapable of negligence. However, with a child aged 4 or older, there is no bright-line rule. Generally, children older than 4, but younger than the age of majority, are presumed to be incapable of committing negligence, but this presumption can be rebutted with sufficient evidence.

This case raises some very interesting questions about the nature of the negligence tort, and the cognitive dissonance required to apply it, in some cases.

After all, if the standard of care to which we hold children is modified, due to their limited maturity and life experience, why shouldn’t this apply to other people who are completely incapable of meeting the legal standard of care? After all, many people, though no fault of their own, suffer from mental illness, or diminished mental capacity, and may not be able to understand the standard of care to which they are bound, let alone deliberately conform their behavior to it.

This hardly seems fair, especially given how we treat children differently. Of course, I’ve noted before that, unlike criminal law, civil law is not really about placing moral blame or punishing those who deserve it. Rather, it’s about compensating the victims of wrongdoing for their injuries. In criminal law, a person’s mental capacity is definitely taken into account, since it affects how culpable they are for a criminal act.

In civil law, that’s not as much of a concern. The focus is on the end result of a person’s conduct, rather than how “blameworthy” they are for it.

So, the law is what it is. We modify the standard of care in negligence cases to take a child’s age into account, but not an adult’s mental capacity. It doesn’t seem fair, but there it is.

This raises a practical issue, however: what is the point of suing a 4-year-old girl? It’s not as if she has any assets to satisfy a judgment. Are they going to put a lien on her playhouse? Attach her bicycle? Garnish her college fund? Furthermore, it’s very difficult to determine what a “reasonable” 4-year-old would have done in a similar situation. Does the average 4-year-old appreciate the likely consequences of running their bicycle into a grown adult? Maybe, maybe not – children that age seem to have a sense that adults are “invincible” since, given their relative lack of physical strength, it’s nearly impossible for them to cause any real physical harm to a normal adult. And a 4-year-old probably doesn’t understand that elderly people tend to be in much more fragile physical condition than younger adults.

Obviously, the more prudent avenue for the plaintiffs would be to sue the girl’s parents for negligent supervision, which they have done. Parents are almost always held responsible for the actions of their minor children, and if parents don’t adequately supervise their children, and the child does something that causes an injury to someone else, the parents might be liable for the injury.

So, what should we learn from all of this? Well, if you’re a parent, this should serve as just one more reminder that you need to closely supervise your children, or face serious legal consequences. And if you’re a child old enough to read this, you should probably be extremely careful, unless you want a plaintiff garnishing your allowance.

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