Tuesday, August 30, 2011
CJ homework: Serpico: Bad Apples in the Big Apple
CJ homework: Serpico: Bad Apples in the Big Apple: Serpico: Bad Apples in the Big Apple A summarization of the movie “Serpico” leads to the realization that the quote, from John Emeri...
CJ homework: Prison Rape Elimination Act of 2003
CJ homework: Prison Rape Elimination Act of 2003: Prison Rape Elimination Act of 2003 Dana Cowan August 29, 2011 Prison Rape Elimination Act of 2003 The Priso...
Prison Rape Elimination Act of 2003
Prison Rape Elimination Act of 2003
Dana Cowan
August 29, 2011
Prison Rape Elimination Act of 2003
The Prison Rape Elimination Act of 2003 legislation arose from the massive amount of sexual assaults that are occurring in prison systems and jails. Sexual assault is present in Federal, State and local facilities this includes juvenile detention centers. A review of the facts that establish a need for such legislation is the preamble to the legislation. The back ground information to the legislation reveals “The total number of inmates who have been sexually assaulted in the past 20 years likely exceeds 1,000,000” (PUBLIC LAW 108-79-SEPT. 4, 2003, 2003). This is an unacceptable failure of the Criminal Justice System that surmounts to a large scale Constitutional violation of the 8th Amendment. It is cruel and unusual punishment to detain a citizen for a crime committed, in a facility where they are brutally sexually assaulted, sometimes to the point of having to be hospitalized.
This legislation defines the weaker population that has a predisposition to become sexually assaulted. The increase in the incarnation of persons with mental illness also increases the victimization (PUBLIC LAW 108-79-SEPT. 4, 2003, 2003). “Young first-time offenders are at increased risk of sexual victimization. Juveniles are 5 times more likely to be sexually assaulted in adult rather than juvenile facilities--often within the first 48 hours of incarceration” (PUBLIC LAW 108-79-SEPT. 4, 2003, 2003). The studies and facts mainly refer to the male incarcerated population and juvenile detainees. The facts presented at the beginning of the legislation cite women’s sexual assault with vagueness. This could be due to the lack of research and empirical data on women’s prison rape cases. This is lack of research is supported and defined in an article from The Prison Journal that states “Although several studies have examined consensual sexual activity in female correctional institutions, there has been little research conducted on in-prison sexual assault among incarcerated females” (Blackburn, 2008)
In the article Powerless in Prison: Sexual Abuse against Incarcerated Women, Nicole Summer points out an issue that pertains solely to women inmates. The following excerpt explains the dilemma "I am 7 months pregnant [and] I got pregnant here during a sexual assault. I have been sexually assaulted here numerous times! The jailers here are the ones doing it!"-- excerpt from a letter from an inmate in a jail in Alabama to Stop Prisoner Rape” (Summer, 2008). The Act does not do enough for women in prison. This issue is not considered and the women being raped in prison often become pregnant. This dehumanizes the female inmate further than male rape victims. She must give her child up for adoption; there are very few prisons that allow mothers the ability to raise children. This is how slaves were treated. The women in prison are not the state’s actual “property”. They are American citizens who are paying for a mistake. They should not have to pay with Rape and giving up their child.
Summer reveals that “Guards have unlimited access to prisoners and their living environment, including where they sleep and where they bathe. With such an imbalance of power, the likelihood of sexual assault increases. Sexual abuse in prison can range from forcible rape to the trading of sex for certain privileges. While the latter may seem consensual to some, the drastic power disparity makes the idea of "consent" almost laughable” (Summer, 2008). While it is illegal for prison guards to have intercourse with women, the fact remains that it is occurring. The Act should have created a same sex law and have female inmates guarded by females only. This will not prevent all female prison rapes, yet, it will provide for a reduction in the abuse created by the conflict theory.
Correctional officers and prison staff are untrained and do not know how to adequately deal with the issue of prison rape. Little is known about the influence and aid in prevention that prison staff gives towards the issue of rape. Hensley reveals this by stating “Few studies have concentrated on examining correctional officers and their attitudes toward rape and prison sexuality” (HENSLEY, 2000). The fact that the prison staff is not trained to prevent and report prison rape is of concern. This is one of the main issues that support the need for this legislation. The prison staff must be on the frontline defense in the zero tolerance stances that this legislation proposes. The Act provides for the training of prison staff.
The Act is seeking to create a standard of zero tolerance for prison rape. The Act is creating reporting standards for rape cases. This uniformity is needed in the States to ensure a standard to measure effectiveness of the Act while ensuring individual victims get help by the same standard. Each State has had different ways of reporting and documenting prison rape. This creates barriers in accurate data needed to implement better standards and may do more to silence victims rather than help them. The uniform standardization of prison rape reporting is a significant step in the right direction.
PREA is focused on a plan to create accountability among the officials for the prison rape cases and reporting them. The primary focus of the Act is research on the subject of prison rape. PREA is an Act that creates more bureaucracy than preventative law. “There are authorized to be appropriated for grants under this section $40,000,000 for each of fiscal years 2004 through 2010” (PUBLIC LAW 108-79-SEPT. 4, 2003, 2003). This funding is more for research rather than prevention and inmate treatment. It seems like it is the preliminary research request before the law rather than the actual law. The fluff in the words does not go far enough to aid the inmate who is being raped. This Act is more of a grandstanding on the subject matter rather than a zero-tolerance to prison rape. The issue is at least being focused on and there is now elected officials who will give lip service to such a hushed issue in America. The Act is gender neutral therefore, unlike many other discriminatory practices; Women are included in the blanket coverage.
PREA allows for state certification when compliance to the Act is adhered to. The punitive recourse in a violation or refusal to comply with the Act is stated as a restriction of federal funds. I personally think that prison officials, who turn a blind eye to prison rape, should go to prison.
Bibliography
PUBLIC LAW 108-79-SEPT. 4, 2003. (2003, SEPT. 4). Retrieved August 28, 2011, from PUBLIC LAW : http://www.justdetention.org/pdf/PREA.pdf
Blackburn, A. (2008, September). Sexual Assault in Prison and Beyond: Toward an Understanding of Lifetime Sexual Assault Among Incarcerated Women. The Prison Journal, 88, 351-377.
HENSLEY, C. (2000, December). THE HISTORY OF PRISON SEX RESEARCH. THE PRISON JOURNAL, 80, 360-367.
Summer, N. (2008, January 15). Powerless in Prison: Sexual Abuse Against Incarcerated Women. Retrieved August 29, 2011, from Alternet: http://www.alternet.org/reproductivejustice/73784
Sunday, May 1, 2011
Stalking Statutes Essay
Stalking Statutes
Definition of the stalking statutes begins to provide an understanding of the basis for the creation of the law. “Laws that prohibit the willful, malicious, and repeated following and harassing of another person” is the definition of the stalking statutes (Siegel, 2009, p. 580). The stalking statutes are necessary to prevent fear and further trespasses against the victim. These trespasses include and are not limited to harassing, following and cyber stalking. Often stalking leads to the death of victims, as noted by Melvin Huang in the Texas Journal on Civil Liberties & Civil Rights in the article Keeping Stalkers at Bay in Texas “Further data paint a grim picture of stalking and its relationship to femicide. Overall, 87% of stalkers are men; furthermore, 94% of women and 60% of men are stalked by men. Seventy-seven percent of female stalking victims and 64% of male victims are stalked by someone they know. Fifty-nine percent of female stalking victims and 30% of male victims are stalked by a current or former intimate partner. The Intimate Partner Stalking and Femicide Study, which studied female murder victims who had been killed by intimate partners, found that 76% of femicide victims and 85% of attempted femicide victims had been stalked by their intimate partners in the year prior to their murders. These sobering statistics reveal that as much as stalkers may claim they act out of love for their victims, "it is not the power of love that drives them, but the love of power" (Huang, 2009, p. 58). When considering stalking statutes the criminal is considered to be of a unusual and special kind of criminal who has the control in a situation and has the thought to reach the other person through fear. The victims carry around their own personal terrorist.
The indication thought history is that stalkers have been in society. The stalking laws are a fairly new movement legislatively speaking. The 1990 move to pass anti-stalking laws has been fuelled by recent incidents of stalking that have caused great public interest. The move began in California after a series of women were murdered by their stalkers including actress Rebecca Schaeffer (Samaha, 2011, p. 356). The law has changed over time in regard to the crime due to the advent of the internet and the realization of the seriousness of the offense. Victims of stalking are often questioned by authorities and even assumed to be involved in victim precipitation. Since the 1990’s the stalking statutes have been modified to include electronic communications. The use of the internet allows a stalker to instill fear and threaten another person in the same fashion of control by using the electronic media. This required legislation to expand to protect the victims of internet or cyber stalking. The stalking statutes were first not taken with serious consideration because no actual physical harm had been caused to the victim. Research has indicated that stalking does lead to violent crime and the consideration for stalking laws by states has increased.
The federal stalking statutes pertain to general stalking, domestic violence and cyber stalking. The domestic violence statutes that include stalking are found in Title 18 U.S.C. § 2261(a)(1) - Interstate Travel to Commit Domestic Violence - requires that 1) the victim must be a spouse or intimate partner of the defendant, 2) the defendant must have crossed a State line (or entered or left Indian country) with the intent to injure, harass, or intimidate one's spouse or intimate partner, 3) in the course of or as a result of such travel, the defendant intentionally commits a crime of violence and 4) the defendant causes bodily injury to the spouse or intimate partner. "Spouse or intimate partner" is defined in 18 U.S.C. § 2266. [Note, "intimate partner" is defined differently under these provisions than it is under 18 U.S.C. 921(a)(32) for use in 18 U.S.C. § 922(d) or (g) prosecutions.] (Government, 2011).
The federal cyber stalking statutes are similar to the domestic violence statutes with the intent to prevent harassment and fear. They cover transmission of electronic communication and identity assuming on social networks. The federal laws also include communication by means of cell phones and messaging from state to state and international. A recent filing of a federal stalking case included cyber stalking and harassment as the accused went to lengths to create a false Facebook identity to harass a NOLA police officer. The harassment continued with email containing threats and repeated harassment. The accused’s mens rea was to knowingly threaten and harass the victim. The accused stated that his actions were justified because the officer raped his girlfriend and he wanted vengeance. This does support the argument that stalkers, no matter the motivation, are a very dangerous people with deeper intent to harm the victim. According to the source “Gary M. O'Bireck, 57, of Elmira, N.Y., is alleged to have created a fake online identity to terrorize and threaten the New Orleans officer, accusing the officer of raping O'Bireck's girlfriend in 2007, according to a felony complaint filed in federal court” (McCarthy, Friday, March 04, 2011). This type of stalking will become more prevalent as we move further in to the era of the online social life.
The Texas stalking statutes state that a person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct, including following the other person, that: the actor knows or reasonably believes the other person will regard as threatening: bodily injury or death for the other person; bodily injury or death for a member of the other person's family or household (PENAL CODE CHAPTER 42, 2011).
In Texas an offense under this section is a felony of the third degree, except that the offense is a felony of the second degree if the actor has previously been convicted under this section (PENAL CODE CHAPTER 42, 2011). Texas appears to be far behind some states in reference to the stalking statutes. The movement to progress the laws to provide protection in Texas is noted by authors such as Melvin Huang “Should stalking protective orders be enacted in Texas, courts and law enforcement must deal with problems of enforcement and effectiveness. As discussed above, these are two critical yardsticks by which to measure the actual power and legitimacy of protective orders. Stalking protective orders would probably face the same challenge that family violence and sexual assault orders have in terms of effective enforcement. Four recommendations are presented in hopes of meeting and overcoming this challenge: (1) enhance stalking training and response protocols in police departments and the community as a whole; (2) engage respondents in protective order proceedings; (3) advance the economic rights of applicants; and (4) modernize safety planning.” (Huang, 2009, p. 93). Huang is correct in the analysis of the challenges that new legislation will face. The enforcement of protective orders is difficult and the enforcement of a stalking protective order would be more of a challenge due to the proof and the nature of the crime. The victim often must document interaction from the stalker. This includes communication documentation and voice recording. The victim is providing the proof to have law enforcement take the seriously. In the past stalkers were not considered a dangerous threat.
Texas has stepped up the alert with stalkers in recent years. The cases are going to the courts, it would appear that judges and law enforcement are beginning to listen to the victims and realize this is a serious matter and may lead to worse than the terrorizing of the victim as noted in a 2010 case where the stalker had been found guilty twice “Fear and uncertainty of what the man might do next drove Kate Brown to pursue her stalking case against him. Harmon Manuel, 27, was a former acquaintance who had been in high school band with her. The two never had a romantic relationship, but Manuel sent Ms. Brown, 23, of Waskom, hundreds of text messages each day professing his love for her. The texts and phone calls began in 2002 and continued until 2005, even after multiple phone number changes. After Manuel pushed his way inside of her apartment, she notified the police. She said he eventually threatened her life. “I wasn't able to be alone, and I always had a sense of panic," she said in a phone interview. She said she does not know how he always found her new numbers. A Smith County jury convicted and sentenced Manuel in April to serve a 10-year prison term on a stalking charge and a $10,000 fine. When combined with an earlier six-year sentence he received in November on another stalking charge, he will serve 16 years for both charges” (WORCHEL, 2010). It is important to note how the first charge did not prevent the reoccurrence of stalking. Each incident noted took the offense to a new and heighted level; the offenses carried out by the offender were escalating. This is often the case with stalking. The first charge may have exacerbated the second offense as explained by another stalking victim“Some stalkers are simply not afraid of the consequences of a protective order violation. As Diana, a former stalking victim laments: "[the protective order] pisses them off, it’s like taking a fly swatter and hitting an elephant with it. It just makes them mad."' (Huang, 2009, p. 70). The protection offered to victims is lacking in effectiveness and until the stalkers are dealt with harshly and new legislation provides more teeth to prevent stalking, the victims will be under duress and continue to have fear for their own safety.
Works Cited
PENAL CODE CHAPTER 42. (2011). Retrieved April 27, 2011, from PENAL CODE: http://www.statutes.legis.state.tx.us/SOTWDocs/PE/htm/PE.42.htm#42.072
Ginsberg, .. (2009). We The People (Seventh ed.). New York, NY, U.S.A.: W.W. Nortion & Company, Inc.
Government, F. (2011). Criminal Resource Manual. Retrieved April 27, 2011, from WWW.justice.gov: http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01118.htm
Huang, M. (2009, Fall). Keeping Stalkers at Bay in Texas. Texas Journal on Civil Liberties & Civil Rights, 15(1), pp. 53-100.
McCarthy, B. (Friday, March 04, 2011, Friday, March 04, 2011 Friday, March 04, 2011). The Times-Picayune . Retrieved April 27, 2011, from NOLA.com : http://www.nola.com/crime/index.ssf/2011/03/massachusetts_professor_accuse.html
Regoli, R., & Hewitt, J. (2008). Exploring Criminal Justice. Sudbury, MA: Jones & Bartlett Learning.
Samaha, J. (2011). Criminal Law (Tenth ed.). Belmont, Ca., U.S.A.: Wadsworth.
Siegel, L. J. (2009). Criminology (Tenth ed.). Belmont, CA, U.S.A.: Wadsworth.
WORCHEL, D. (2010, May 17). Victim, Experts Discuss Stalking. Retrieved 4 27, 2011, from Texas District & County Attorneys Association: http://www.tdcaa.com/node/6489
Definition of the stalking statutes begins to provide an understanding of the basis for the creation of the law. “Laws that prohibit the willful, malicious, and repeated following and harassing of another person” is the definition of the stalking statutes (Siegel, 2009, p. 580). The stalking statutes are necessary to prevent fear and further trespasses against the victim. These trespasses include and are not limited to harassing, following and cyber stalking. Often stalking leads to the death of victims, as noted by Melvin Huang in the Texas Journal on Civil Liberties & Civil Rights in the article Keeping Stalkers at Bay in Texas “Further data paint a grim picture of stalking and its relationship to femicide. Overall, 87% of stalkers are men; furthermore, 94% of women and 60% of men are stalked by men. Seventy-seven percent of female stalking victims and 64% of male victims are stalked by someone they know. Fifty-nine percent of female stalking victims and 30% of male victims are stalked by a current or former intimate partner. The Intimate Partner Stalking and Femicide Study, which studied female murder victims who had been killed by intimate partners, found that 76% of femicide victims and 85% of attempted femicide victims had been stalked by their intimate partners in the year prior to their murders. These sobering statistics reveal that as much as stalkers may claim they act out of love for their victims, "it is not the power of love that drives them, but the love of power" (Huang, 2009, p. 58). When considering stalking statutes the criminal is considered to be of a unusual and special kind of criminal who has the control in a situation and has the thought to reach the other person through fear. The victims carry around their own personal terrorist.
The indication thought history is that stalkers have been in society. The stalking laws are a fairly new movement legislatively speaking. The 1990 move to pass anti-stalking laws has been fuelled by recent incidents of stalking that have caused great public interest. The move began in California after a series of women were murdered by their stalkers including actress Rebecca Schaeffer (Samaha, 2011, p. 356). The law has changed over time in regard to the crime due to the advent of the internet and the realization of the seriousness of the offense. Victims of stalking are often questioned by authorities and even assumed to be involved in victim precipitation. Since the 1990’s the stalking statutes have been modified to include electronic communications. The use of the internet allows a stalker to instill fear and threaten another person in the same fashion of control by using the electronic media. This required legislation to expand to protect the victims of internet or cyber stalking. The stalking statutes were first not taken with serious consideration because no actual physical harm had been caused to the victim. Research has indicated that stalking does lead to violent crime and the consideration for stalking laws by states has increased.
The federal stalking statutes pertain to general stalking, domestic violence and cyber stalking. The domestic violence statutes that include stalking are found in Title 18 U.S.C. § 2261(a)(1) - Interstate Travel to Commit Domestic Violence - requires that 1) the victim must be a spouse or intimate partner of the defendant, 2) the defendant must have crossed a State line (or entered or left Indian country) with the intent to injure, harass, or intimidate one's spouse or intimate partner, 3) in the course of or as a result of such travel, the defendant intentionally commits a crime of violence and 4) the defendant causes bodily injury to the spouse or intimate partner. "Spouse or intimate partner" is defined in 18 U.S.C. § 2266. [Note, "intimate partner" is defined differently under these provisions than it is under 18 U.S.C. 921(a)(32) for use in 18 U.S.C. § 922(d) or (g) prosecutions.] (Government, 2011).
The federal cyber stalking statutes are similar to the domestic violence statutes with the intent to prevent harassment and fear. They cover transmission of electronic communication and identity assuming on social networks. The federal laws also include communication by means of cell phones and messaging from state to state and international. A recent filing of a federal stalking case included cyber stalking and harassment as the accused went to lengths to create a false Facebook identity to harass a NOLA police officer. The harassment continued with email containing threats and repeated harassment. The accused’s mens rea was to knowingly threaten and harass the victim. The accused stated that his actions were justified because the officer raped his girlfriend and he wanted vengeance. This does support the argument that stalkers, no matter the motivation, are a very dangerous people with deeper intent to harm the victim. According to the source “Gary M. O'Bireck, 57, of Elmira, N.Y., is alleged to have created a fake online identity to terrorize and threaten the New Orleans officer, accusing the officer of raping O'Bireck's girlfriend in 2007, according to a felony complaint filed in federal court” (McCarthy, Friday, March 04, 2011). This type of stalking will become more prevalent as we move further in to the era of the online social life.
The Texas stalking statutes state that a person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct, including following the other person, that: the actor knows or reasonably believes the other person will regard as threatening: bodily injury or death for the other person; bodily injury or death for a member of the other person's family or household (PENAL CODE CHAPTER 42, 2011).
In Texas an offense under this section is a felony of the third degree, except that the offense is a felony of the second degree if the actor has previously been convicted under this section (PENAL CODE CHAPTER 42, 2011). Texas appears to be far behind some states in reference to the stalking statutes. The movement to progress the laws to provide protection in Texas is noted by authors such as Melvin Huang “Should stalking protective orders be enacted in Texas, courts and law enforcement must deal with problems of enforcement and effectiveness. As discussed above, these are two critical yardsticks by which to measure the actual power and legitimacy of protective orders. Stalking protective orders would probably face the same challenge that family violence and sexual assault orders have in terms of effective enforcement. Four recommendations are presented in hopes of meeting and overcoming this challenge: (1) enhance stalking training and response protocols in police departments and the community as a whole; (2) engage respondents in protective order proceedings; (3) advance the economic rights of applicants; and (4) modernize safety planning.” (Huang, 2009, p. 93). Huang is correct in the analysis of the challenges that new legislation will face. The enforcement of protective orders is difficult and the enforcement of a stalking protective order would be more of a challenge due to the proof and the nature of the crime. The victim often must document interaction from the stalker. This includes communication documentation and voice recording. The victim is providing the proof to have law enforcement take the seriously. In the past stalkers were not considered a dangerous threat.
Texas has stepped up the alert with stalkers in recent years. The cases are going to the courts, it would appear that judges and law enforcement are beginning to listen to the victims and realize this is a serious matter and may lead to worse than the terrorizing of the victim as noted in a 2010 case where the stalker had been found guilty twice “Fear and uncertainty of what the man might do next drove Kate Brown to pursue her stalking case against him. Harmon Manuel, 27, was a former acquaintance who had been in high school band with her. The two never had a romantic relationship, but Manuel sent Ms. Brown, 23, of Waskom, hundreds of text messages each day professing his love for her. The texts and phone calls began in 2002 and continued until 2005, even after multiple phone number changes. After Manuel pushed his way inside of her apartment, she notified the police. She said he eventually threatened her life. “I wasn't able to be alone, and I always had a sense of panic," she said in a phone interview. She said she does not know how he always found her new numbers. A Smith County jury convicted and sentenced Manuel in April to serve a 10-year prison term on a stalking charge and a $10,000 fine. When combined with an earlier six-year sentence he received in November on another stalking charge, he will serve 16 years for both charges” (WORCHEL, 2010). It is important to note how the first charge did not prevent the reoccurrence of stalking. Each incident noted took the offense to a new and heighted level; the offenses carried out by the offender were escalating. This is often the case with stalking. The first charge may have exacerbated the second offense as explained by another stalking victim“Some stalkers are simply not afraid of the consequences of a protective order violation. As Diana, a former stalking victim laments: "[the protective order] pisses them off, it’s like taking a fly swatter and hitting an elephant with it. It just makes them mad."' (Huang, 2009, p. 70). The protection offered to victims is lacking in effectiveness and until the stalkers are dealt with harshly and new legislation provides more teeth to prevent stalking, the victims will be under duress and continue to have fear for their own safety.
Works Cited
PENAL CODE CHAPTER 42. (2011). Retrieved April 27, 2011, from PENAL CODE: http://www.statutes.legis.state.tx.us/SOTWDocs/PE/htm/PE.42.htm#42.072
Ginsberg, .. (2009). We The People (Seventh ed.). New York, NY, U.S.A.: W.W. Nortion & Company, Inc.
Government, F. (2011). Criminal Resource Manual. Retrieved April 27, 2011, from WWW.justice.gov: http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01118.htm
Huang, M. (2009, Fall). Keeping Stalkers at Bay in Texas. Texas Journal on Civil Liberties & Civil Rights, 15(1), pp. 53-100.
McCarthy, B. (Friday, March 04, 2011, Friday, March 04, 2011 Friday, March 04, 2011). The Times-Picayune . Retrieved April 27, 2011, from NOLA.com : http://www.nola.com/crime/index.ssf/2011/03/massachusetts_professor_accuse.html
Regoli, R., & Hewitt, J. (2008). Exploring Criminal Justice. Sudbury, MA: Jones & Bartlett Learning.
Samaha, J. (2011). Criminal Law (Tenth ed.). Belmont, Ca., U.S.A.: Wadsworth.
Siegel, L. J. (2009). Criminology (Tenth ed.). Belmont, CA, U.S.A.: Wadsworth.
WORCHEL, D. (2010, May 17). Victim, Experts Discuss Stalking. Retrieved 4 27, 2011, from Texas District & County Attorneys Association: http://www.tdcaa.com/node/6489
Wednesday, April 27, 2011
Serpico: Bad Apples in the Big Apple
Serpico: Bad Apples in the Big Apple
A summarization of the movie “Serpico” leads to the realization that the quote, from John Emerich Edward Dalberg-Acton, “All power tends to corrupt and absolute power corrupts absolutely” is no less true today than it was in 1887. The movie “Serpico” demonstrates that the merit system and an outside agency is necessary to prevent systemic corruption within the Justice System. Systemic corruption appears to be facilitated, encouraged and protected by the “code of silence”.
Officers are taught by fellow officers how to use the authority given them to advance the sub-culture of crime. This fact is a matter of debate. The question of crime in police departments is often blamed on unethical officers rather than the truth of the officers who are taught by superiors and veteran officers the means of crime. The bad apples or bad system debate is expressed in Serpico, indicating the confirmation that a bad system needs an outside agency to correct it.
This movie begs the question “Who was keeping an eye on the keepers of the peace among the New York Police Department?” The instrument of change in the movie is Frank Serpico making him the antagonist. The protagonists are the dark and corrupted of officers, and the supervisors who by omission participate in crime. The ideology that has perpetuated this systematic corruption is the promoting within the ranks based on who you are not what you do. In Serpico, it seems that the supervisors were very astute in the process of looking the other way. For this ability, they moved up among the chain of command. The distinct officer “code of silence” provided the cohesion that veils the subculture of crime perpetuated by the officers.
The quote from the movie poster reproduced by Regoli and Hewitt (P. 198) in Exploring Criminal Justice states:
“Many of his fellow officers considered him the most dangerous man alive –an honest cop.”
This is a very powerful and accusing statement towards the NYCPD. In “Serpico” the minimization and neutralization of corruption becomes the justification for the actions of the officers who are unethical. This is the attempt to rationalize the acceptance of the blanket loss of ethics among the officers. Frank Serpico does not participate in the corruption and refuses to take the money offered to him. His complaints are ignored as he goes higher and higher up the chain of command. Frank Serpico is a lighthouse shining a light that cuts the darkness.
“This is the verdict: Light has come into the world, but men loved darkness instead of light because their deeds were evil.” John 3:19 NIV
The result of the complaints by Frank Serpico created Frank’s own cross to bear. The officers ostracize, threaten and fail to protect Frank to the point that he becomes comparable to another religious historical figure. The atonement for the deeds of the police appears to be around the corner with every complaint lodged against the department, yet Serpico becomes placated in each meeting and by every supervisor, including the mayor. Political tolerance to corruption with no legal controls in place to prevent the un-ethical police sub-culture is unacceptable.
The epiphany of Serpico is that the systemic corruption creates the need to go to an outside agency. This action of going to an outside agency is not taken lightly in the movie. Frank Serpico knows and displays regret for the violation of the “code of silence”. He is aware it is a trespass on the brotherhood. He provides the New York Times with enough fodder to create the series printed on NYCPD corruption. He has two other officers collaborate his story. Serpico feels that he must go to an outside agency to correct the corrupt and ethically bankrupt police department. This exposure allows for the creation of the Knapp Commission.
Regoli and Hewitt reveal in Exploring Criminal Justice that the New York Times series on police corruption prompted Mayor Lindsay to appoint five people to investigate corruption in the NYPD. Five people were appointed to and composed the Knapp Commission including Attorney Whitman Knapp who headed the Knapp Commission (P.199). The findings of the Knapp Commission suggested the organized corruption. Police Administrators accompanied and progressed with the breach of ethics by active cooperation and participation in the crimes or passively omitted to control the officers (Gaines/Kappeler p. 375).
Pervasive organized corruption is organized crime. New Yorks history of ties to the mafia would leave the citizen caught between “the devil and the deep blue sea” if seeking any justice. The mafia is controlling the civilian sub-culture and the corrupt police controlling the police sub-culture leaving the citizens at the mercy of criminals, and no one is watching. Serpico stood against this systemic organized corruption in long-suffering, personal sacrifice with hardship. Vindication for Frank appears in the finality of the film with him testifying to the Knapp Commission. According to Gaines and Kappeler, the result of the Knapp Commission was the convicting of the 20 officers charged with felony crimes that included armed robbery, assault and murder (P. 375). The protect and serve aspect of policing does not include murder. This is a grievous trespass on the public trust given to officers, as are any violations of the law by the officers against the citizens who submit the authority to the law.
The Knapp Commission exposed the corruption and sought out the officers for criminal prosecution. The results of Serpico have been far reaching. According to Gaines and Kappeler in Policing in America “Twenty years after the Knapp Commission’s findings, the issue of systemic police corruption was revisited by the Mollen Commission. Although NYCPD commissioner Kelly denied systemic corruption, the commission uncovered substantial evidence of this form of organized corruption” (P.376). These commissions are necessary to investigate and dissolve the corruption within police organizations.
The anthropological perspective of police behavior can be used to explain the “bad behavior” found in the police culture. Officers become shaped and influenced by the police culture. The rookie officers learn from the older corrupt officers. This in turn can demonstrate the values of the whole department, although there may be a distinct subculture that is not made privy to the department as a whole or to the public. Empirical research from the Knapp and Mollen Commission agree with the anthropological perspective of police behavior.
In Exploring Criminal Justice by Regoli and Hewitt it is stated that t "Police supervisors must admit when corruption exists and confront the problem, Furthermore, they must recognize that corruption often begins at the top and drifts downward through the ranks" ( P. 199).This reasearch is indicating that criminal behavior drifts downward to the new guy... If the bad apples argument is correct, then all of the corrupt officers selected policing to exploit it. Where is the honor in this? The authoritative personality is attracted to policing, not the ethically challenged personality.
The corruption seeps in due to the influence of peer officers, and once it takes hold the distinction of ethically correct and the immoral becomes dissipated. The majority of the NYCPD was corrupt in the 1970's.That is a huge number of unethical people entering the field to become officers. If it were not a hero like action to stand against corruption then this movie would not have been made.
Trends suggest that police departments have corruption in three ways. The rotten apples and rotten pockets type of department deals with the individual officer’s corruption (Gaines, P.377). This is not the case in “Serpico” – the movie is demonstrating the third type of department corruption; Pervasive Organized Corruption. Pervasive is defined as existing in, or spreading through every part of something. The term organized is referring to the hierarchical and limited or exclusive membership of the corruption. The corruption constitutes a unique subculture, perpetuates itself by violation of law, and exhibits a willingness to use illegal violence. In the naming of such findings alone as Pervasive Organized Corruption is a stinging finding of fault on the behalf of the NYCPD and the discovery of such corruption brought shame to the department. The finding of such corruption exacerbated the public’s distrust and served as a means to strengthen the conflict theory.
The passive assistance the administration is giving to corruption by looking the other way is complementing and reinforcing the corruption throughout the department. The Knapp commission created in 1970 found that Pervasive Organized Corruption was in the New York City Police Department. A new officer entering the department with high ideals on being ethical and a hero will soon lose this identity and assimilate the new identity of the corrupt police culture. Officers who do not conform to corruption will become the outliers among the median of a corrupt department.
In Shots in the Mirror, by Nicole Rafter it is revealed that “Serpico, featured Al Pacino, in the true story of a New York City cop who ratted on crooked officers and suffered grim consequences. By portraying Serpico as an eccentric who, by virtue of being a good guy in an evil department, is himself a bit of an outlaw. Pacino manages the difficult feat of making an official hero appealing” (p.116). This also will set them up for being ostracized and alone. Policing attracts people who want to be heroes; the culture of corruption found in certain departments creates the adherence to unethical practices and behavior.
This creates the need for an outside agency’s oversight to protect civil liberties and whistleblowers. Frank Serpico’s own website suggests that the tern “whistleblower” should be replaced with the term “Lamplighter”. This is an insightful suggestion due to the negative connotations of the term “whistleblower” as it takes honor and courage to place a light on the darkness of corruption. Do you know of any officer who said they wanted to become a police officer to “take bribes”? Yet, they often say they joined to “save lives”. Most officers are in it for the right reasons - they are good apples. With administration that cultivates this good intent and an outside agency that supports and investigates the law, the ethically sound officer will have the ability to flourish and do the job with respect and honor. The result of this positive and ethical environment is public support and trust. There must be an outside agency that keeps an eye on the keeper.
A summarization of the movie “Serpico” leads to the realization that the quote, from John Emerich Edward Dalberg-Acton, “All power tends to corrupt and absolute power corrupts absolutely” is no less true today than it was in 1887. The movie “Serpico” demonstrates that the merit system and an outside agency is necessary to prevent systemic corruption within the Justice System. Systemic corruption appears to be facilitated, encouraged and protected by the “code of silence”.
Officers are taught by fellow officers how to use the authority given them to advance the sub-culture of crime. This fact is a matter of debate. The question of crime in police departments is often blamed on unethical officers rather than the truth of the officers who are taught by superiors and veteran officers the means of crime. The bad apples or bad system debate is expressed in Serpico, indicating the confirmation that a bad system needs an outside agency to correct it.
This movie begs the question “Who was keeping an eye on the keepers of the peace among the New York Police Department?” The instrument of change in the movie is Frank Serpico making him the antagonist. The protagonists are the dark and corrupted of officers, and the supervisors who by omission participate in crime. The ideology that has perpetuated this systematic corruption is the promoting within the ranks based on who you are not what you do. In Serpico, it seems that the supervisors were very astute in the process of looking the other way. For this ability, they moved up among the chain of command. The distinct officer “code of silence” provided the cohesion that veils the subculture of crime perpetuated by the officers.
The quote from the movie poster reproduced by Regoli and Hewitt (P. 198) in Exploring Criminal Justice states:
“Many of his fellow officers considered him the most dangerous man alive –an honest cop.”
This is a very powerful and accusing statement towards the NYCPD. In “Serpico” the minimization and neutralization of corruption becomes the justification for the actions of the officers who are unethical. This is the attempt to rationalize the acceptance of the blanket loss of ethics among the officers. Frank Serpico does not participate in the corruption and refuses to take the money offered to him. His complaints are ignored as he goes higher and higher up the chain of command. Frank Serpico is a lighthouse shining a light that cuts the darkness.
“This is the verdict: Light has come into the world, but men loved darkness instead of light because their deeds were evil.” John 3:19 NIV
The result of the complaints by Frank Serpico created Frank’s own cross to bear. The officers ostracize, threaten and fail to protect Frank to the point that he becomes comparable to another religious historical figure. The atonement for the deeds of the police appears to be around the corner with every complaint lodged against the department, yet Serpico becomes placated in each meeting and by every supervisor, including the mayor. Political tolerance to corruption with no legal controls in place to prevent the un-ethical police sub-culture is unacceptable.
The epiphany of Serpico is that the systemic corruption creates the need to go to an outside agency. This action of going to an outside agency is not taken lightly in the movie. Frank Serpico knows and displays regret for the violation of the “code of silence”. He is aware it is a trespass on the brotherhood. He provides the New York Times with enough fodder to create the series printed on NYCPD corruption. He has two other officers collaborate his story. Serpico feels that he must go to an outside agency to correct the corrupt and ethically bankrupt police department. This exposure allows for the creation of the Knapp Commission.
Regoli and Hewitt reveal in Exploring Criminal Justice that the New York Times series on police corruption prompted Mayor Lindsay to appoint five people to investigate corruption in the NYPD. Five people were appointed to and composed the Knapp Commission including Attorney Whitman Knapp who headed the Knapp Commission (P.199). The findings of the Knapp Commission suggested the organized corruption. Police Administrators accompanied and progressed with the breach of ethics by active cooperation and participation in the crimes or passively omitted to control the officers (Gaines/Kappeler p. 375).
Pervasive organized corruption is organized crime. New Yorks history of ties to the mafia would leave the citizen caught between “the devil and the deep blue sea” if seeking any justice. The mafia is controlling the civilian sub-culture and the corrupt police controlling the police sub-culture leaving the citizens at the mercy of criminals, and no one is watching. Serpico stood against this systemic organized corruption in long-suffering, personal sacrifice with hardship. Vindication for Frank appears in the finality of the film with him testifying to the Knapp Commission. According to Gaines and Kappeler, the result of the Knapp Commission was the convicting of the 20 officers charged with felony crimes that included armed robbery, assault and murder (P. 375). The protect and serve aspect of policing does not include murder. This is a grievous trespass on the public trust given to officers, as are any violations of the law by the officers against the citizens who submit the authority to the law.
The Knapp Commission exposed the corruption and sought out the officers for criminal prosecution. The results of Serpico have been far reaching. According to Gaines and Kappeler in Policing in America “Twenty years after the Knapp Commission’s findings, the issue of systemic police corruption was revisited by the Mollen Commission. Although NYCPD commissioner Kelly denied systemic corruption, the commission uncovered substantial evidence of this form of organized corruption” (P.376). These commissions are necessary to investigate and dissolve the corruption within police organizations.
The anthropological perspective of police behavior can be used to explain the “bad behavior” found in the police culture. Officers become shaped and influenced by the police culture. The rookie officers learn from the older corrupt officers. This in turn can demonstrate the values of the whole department, although there may be a distinct subculture that is not made privy to the department as a whole or to the public. Empirical research from the Knapp and Mollen Commission agree with the anthropological perspective of police behavior.
In Exploring Criminal Justice by Regoli and Hewitt it is stated that t "Police supervisors must admit when corruption exists and confront the problem, Furthermore, they must recognize that corruption often begins at the top and drifts downward through the ranks" ( P. 199).This reasearch is indicating that criminal behavior drifts downward to the new guy... If the bad apples argument is correct, then all of the corrupt officers selected policing to exploit it. Where is the honor in this? The authoritative personality is attracted to policing, not the ethically challenged personality.
The corruption seeps in due to the influence of peer officers, and once it takes hold the distinction of ethically correct and the immoral becomes dissipated. The majority of the NYCPD was corrupt in the 1970's.That is a huge number of unethical people entering the field to become officers. If it were not a hero like action to stand against corruption then this movie would not have been made.
Trends suggest that police departments have corruption in three ways. The rotten apples and rotten pockets type of department deals with the individual officer’s corruption (Gaines, P.377). This is not the case in “Serpico” – the movie is demonstrating the third type of department corruption; Pervasive Organized Corruption. Pervasive is defined as existing in, or spreading through every part of something. The term organized is referring to the hierarchical and limited or exclusive membership of the corruption. The corruption constitutes a unique subculture, perpetuates itself by violation of law, and exhibits a willingness to use illegal violence. In the naming of such findings alone as Pervasive Organized Corruption is a stinging finding of fault on the behalf of the NYCPD and the discovery of such corruption brought shame to the department. The finding of such corruption exacerbated the public’s distrust and served as a means to strengthen the conflict theory.
The passive assistance the administration is giving to corruption by looking the other way is complementing and reinforcing the corruption throughout the department. The Knapp commission created in 1970 found that Pervasive Organized Corruption was in the New York City Police Department. A new officer entering the department with high ideals on being ethical and a hero will soon lose this identity and assimilate the new identity of the corrupt police culture. Officers who do not conform to corruption will become the outliers among the median of a corrupt department.
In Shots in the Mirror, by Nicole Rafter it is revealed that “Serpico, featured Al Pacino, in the true story of a New York City cop who ratted on crooked officers and suffered grim consequences. By portraying Serpico as an eccentric who, by virtue of being a good guy in an evil department, is himself a bit of an outlaw. Pacino manages the difficult feat of making an official hero appealing” (p.116). This also will set them up for being ostracized and alone. Policing attracts people who want to be heroes; the culture of corruption found in certain departments creates the adherence to unethical practices and behavior.
This creates the need for an outside agency’s oversight to protect civil liberties and whistleblowers. Frank Serpico’s own website suggests that the tern “whistleblower” should be replaced with the term “Lamplighter”. This is an insightful suggestion due to the negative connotations of the term “whistleblower” as it takes honor and courage to place a light on the darkness of corruption. Do you know of any officer who said they wanted to become a police officer to “take bribes”? Yet, they often say they joined to “save lives”. Most officers are in it for the right reasons - they are good apples. With administration that cultivates this good intent and an outside agency that supports and investigates the law, the ethically sound officer will have the ability to flourish and do the job with respect and honor. The result of this positive and ethical environment is public support and trust. There must be an outside agency that keeps an eye on the keeper.
Wednesday, March 2, 2011
In re B.W. TSC case 08-1044
Review of Materials
The oral arguments video put this case into perspective. To read the case is one thing, yet, to see and hear the persons involved and the Justices asking for clarification brings the heart of the matter into focus. The respect the lawyers give to the court while presenting their side of this case is also noted. The lawyers on both sides also seem nervous to be presenting this to the Texas Supreme Court. The issue at hand is brought into focus by seeing the persistence the Justices give in making sure they understand all the aspects of this case.
The passion that each side and the Justices are speaking on is truly amazing. There is oblivious compassion shown by Justice Harriet O’Neill when she is speaking on prosecutorial discretion and how it failed B.W. in this case. She states that the adjudication will have repercussions on B.W. for the rest of her life. Justice Eva Guzman questions the fact that there was no investigation and if the other police departments have other means for dealing with these kinds of cases instead of adjudication. Attorney Michael A. Choyke states that the “plain language of a statute is not to be considered as legislative intent if it leads to absurd results.” This statement summarizes the whole of the case in the fact that the two laws in question allowed for a minor child victim to become adjudicated.
The statutory argument is volleyed by all participants for questioning and clarification. Chief Justice Wallace is showing concern for the creation of more victims if a ruling in favor of B.W would demonstrate to the populace at large that children are not capable of being charged and adjudicated for prostitution, he asks “what is the incentive to make a child abstain from this behavior? His question tells much about his views on punishment and crime deterrence. It would appear to some that Chief Justice Wallace is a supporter of the prevention of crime by general deterrence theory. This method of deterring crime may work for consenting adults, but not for a child under duress as in this case.
The frustration in trying to prove the facts to support the argument is also noted on both sides. The defense is establishing that the adjudication is without any basis in the law by using a clever analogy to a protection train that B.W. should be on yet; she is on the prosecution train. Attorney Anne E. Johnson states “…requires that she immediately be taken off the train, Justice O'Neill, at the minute they discovery that she's a child, and they put her on a protection train”.
Attorney Daniel C. McCroy is defining the precedence setting case “… the statute upon which the defendant is relying, the Petitioner, the Aggravated Sexual Assault Statute, 22.021, if you look at the literal text of that statute, nowhere in that statute does is say that a child under the age of 14 cannot consent to sex. What it does say is that the consent of a child under the age of 14 is not relevant, does not serve as a defense for a sexual assault offender”. The point he is making is that the case rule of 14 years to consent do not apply in this case, it applies to a youth being able to consent to sexual relations with an adult in the adults favor. The consent age is to address the issue of rape against the child, not the child’s age as being able to be a perpetrator of a sex crime. His point may have been better defined as being stated by switching genders. I would have made the point by declaring that if a 14 year old boy forced himself on a woman he could not be charged with rape because he is too young to consent to sex. The following referenced case would have been given (or a similar one) and realization they must move to acquit the 13 year old boy – because according to B.W.s case argument, no crime occurred.
“A 13-year-old Bonita Springs boy stands accused of raping two girls and a boy, all younger than 12.The boy was charged with three counts of sexual battery by a child under 18 on a child younger than 12 and one count of fondling. According to a Lee County Sheriff’s Office report: Deputies were notified Jan. 23 that three youngsters were the victims of a sex crime. A girl told investigators the suspect had touched her private areas more than one time and always while she was alone with him. She also said he had raped her. The incidents occurred while they lived in Texas and she was in the second or third grade. Another girl said he also touched her and raped her several times, including about a month earlier. She said her family had moved from Texas and the incidents occurred about five times since the family has lived in Bonita Springs. She said the incidents occurred in a trailer behind her house and the suspect told her not to tell. The second girl also said he had done the same thing to a boy. The boy said the suspect told him he had sex with the two girls while they lived in Texas. One time when he visited the boy’s house in Texas, he asked him to do a sex act. The boy refused, but when the suspect moved to Bonita Springs, he asked the boy if he remembered about their prior conversation.” http://www.naplesnews.com/news/2011/feb/08/13-year-old-bonita-springs-boy-accused-raping-3-ki/
Furthermore, this age requirement is unconstitutional because it discriminates by gender and violates equal protection under the law that is afforded by the 14th Amendment (Ginsberg, a14). The age of consent is used in consent cases of female children not male. The quoted case does not, of course, need an acquittal- although it does make a point about the minds of 13 year olds and the disparity created by gender and age as status of the offender. If the courts do stand by the 14 year old to consent to a sexual act then the 13 year old boy cannot be guilty of rape.
The interest given to this case by the Justices is also exposed by type of questions and the statements they make. It is oblivious Justice O’Neil, and Justice Guzman have the 13 year old in there heart as a victim. Chief Justice Wallace and Justice Green are leery to rush to call this 13 year old child a victim. Justice Green states that she may try to get out of charges by saying “I committed no crime”.
The insightful statement rings true in this case, B.W. is a victim and an offender. Because of her age she is mostly a victim. It is revealed that B.W. is in fact a guest under the juvenile justice system and is committed at the time of the trial. She is being punished as an offender. The victim needs help to recover her life.
The insightful angle provided by the viewing of the oral arguments rather than reading them is the amount of courtroom crosstalk that is occurring. The justices often cut each other off and then excuse themselves. They assault the case arguing council with questions from every side of the argument and demand the rapid response from the council. The counsel has been in court with one judge and that is very demanding in any court case. I cannot imagine trying to please nine of them and argue the case effectively with all nine asking questions at the same time. This is a judicial gauntlet and it is no wonder why the attorneys often look like deer caught in the headlights.
Decision
Dana Cowan is in concurrence with the opinion delivered by Justice O’Neill, in which Chief Justice Jefferson, Justice Hecht, Justice Medina, Justice Green, and Justice Guzman Joined. The intent of the legislature was not to create a sex offender at the age of thirteen by the blanket adoption of the Texas penal codes into the Juvenile Justice System. The adjudication of a thirteen year old child for prostitution causes the victimization of the child twice. One victimization by the child having to do the act, the other victimization for the lack of protection given to her by the prosecution of her – to the end of her adjudication.
The Feminist Theory of Delinquency argues “that girl’s victimization and the relationship between that experience and girls crime have often been ignored” (Bartollas, 81). This theory indicates that there is a direct causative result in crime due to the abuse of a female child. The female child that is delinquent is often acting in result of the crime perpetuated upon her. The causative factor of the result is more often than not ignored and the female child seldom ever gets help with the initial trauma. Females in the Juvenile Justice System are composed of a substantial number of victims.
The victimization is both physical and sexual (Bartollas, 81). The adjudication of B.W. is creating a stigma that will follow her for the rest of her life and will prove fact to the Labeling Theory. B.W. will be known in future by parents, teachers and law enforcement as a prostitute. This negative cultural tagging will affect every aspect of her life including simple decisions, motherhood and employment abilities. This adjudication is inherently oppressive and destructive to the future hopes of a life ability to participate in the defended right to the pursuit of happiness granted the American citizen.
The assumption by the prosecution that the whole is greater than the sum of its parts is inherently and grossly faulty. B.W.’s actions as a whole demonstrate the delinquency of a youth. The acts that make up the whole create the necessity to identify that B.W. is a victim and has been victimized by adults due to the nature of her delinquency. The denial of the due process investigation not only violates B.W. it condones the adults actions by discretionary investigating. There is no excuse for this discretion. Perhaps the investigation may indeed create a light to be shined on the involvement of persons within the system that seeks to punish her.
The adults, all of them, who used her services in any way as she earned her money should be identified and convicted of sexual assault on a minor child and hence be known as a registered sex offender. The rape of any other child of the age of 13 years would require the same action. Is it of any consequence that B.W. has received the label? She is in fact still a child and any person who assaulted her should be sought out and convicted – this enforcement of justice would require the law enforcement to actually stand up and do their jobs. The failure in this case is in the confusion of law enforcements job description, the confusion of what is right caused by the labeling of a child – who was at one point an innocent child. The frustration towards a child who is not conforming to society begs the question “Why?” I must not be resolved with the response “Because we have not punished her enough!”
Police are more likely to arrest a female if she violates traditional role expectations for females, such as failing to obey parents, being sexually promiscuous, or running away from home. (Bartollas, 96) The blinders of society to the female delinquent must be examined to discern where the justice lie in the crime B.W. is convicted of. In the growing use of children as sexual objects in the sex trade it must become clearly defined that no matter the assumptions of law enforcement about the child the Penal code violation lies with the adult sexual abuser.
The causative issues at hand is the trends and black-market demand created by sex offenders as defined by Gaines in Policing in America “Prostitution is a compelling social problem because the number of underage people engaged in prostitution. Many female prostitutes are underage, and there is a significant clientele that prefers underage prostitutes. Prostitutes often have long histories of sexual and physical abuse by family members often beginning at the age of 10 or 12” (Gaines, 253).
The life experiences that have produced the result of a child involved in the sex trade cannot be assumed to be of choice by the child and must be seen as worse than imagined- Therefore a thorough investigation into the child’s life must proceed. The events in a child’s life are unknown and cannot be assumed to be irrelevant. The investigation should start where the child did, at home and within the family and radiate out from said point. The violations of the child on the level of physical and sexual abuse must be prosecuted. Each offence is a separate count and a separate act of abuse against the child and is a violation of the Texas Penal Code.
Any person who had sexual relations with B.W. over the age of 14 years should be required to stand trial and must be known to society as a registered sex offender to protect the society form such offenders. If there is a movement to stop the human trafficking that has taken hold in today’s society the absolute zero tolerance stance must be a part of said movement. Anything less than this strong stance is in effect trying to catch the wind with an open hand. It will be in vain and create an ocean of new victims. The changing society with the tolerance of abusing the child must be halted. The children of our society are not a commodity at the disposal of perpetrators in the sex trade.
In State v. K.L.R an eight year old child was convicted of residential burglary by the Superior Court, Clallam County. The child did in fact do the crime and in the court records the mother admitted beating him black and blue. The court ruled that children between the ages of eight to twelve are incapable of committing crime unless they have the capacity to know it was wrong. B.W. may have known her actions were wrong (Samaha, 193). B.W.’s duress must be taken into account for an excuse to this crime. The defense of duress is justifiable in this case due to the nature of the crime and is excusable. The actions of the sex offense alone are supporting the excuse defense. The accepting of money for the act is further supporting that the crime is a learned or forced behavior.
The respondent claims that the May 1996 case does not indemnify the accused of the crime due to the nature of May. The case is a rape case and the offenders are reversed in the case indicating the consent issue to be mute because it does not explicitly state that children under the age of 14 cannot consent to sexual acts. Respondent Dan McCrory, the Assistant District Attorney of Harris County, Texas calls the basis of status cause for acquittal “Legal Fiction”. The assumption of age creating innocence may be in fact legal fiction. The common sense of the issue would suggest the adoption of the legal fiction into law and become policy in the best interest of the children caught up in the sex trade. Respondent Dan McCrory does admit that the case is not a case where he can feel good about the conviction of a child. He states there are no winners in this case.
Conclusions:
The conclusion of this case may allow for B.W. to have a better life in the future, the reversal of her adjudication may lead to the provision of mental health and a prevention of adversarial, lifelong labeling of B.W. that allows for the chance of a normal life. The petitioner’s legal team can have a sense of accomplishment in the ruling. Respondent Dan McCrory is still employed as an Assistant District Attorney of Harris County, Texas and may see these types of crimes in a different light due to the ruling.
The society at large is under attack by the desecration of morals as the sex trade takes hold and the unidentified sex offenders continue to create the market demand for young children to be exploited. The laws do not go far enough into the causation of such crimes to identify at risk youth, or to seek out punitive results on the adult perpetrators of heinous crimes against children. Since this ruling the issue of human trafficking has become a greater force to be dealt with in current society.
The revision of laws to allow for enhanced punitive consequences to the underground human trafficking world and the players in it on any level is a necessity to maintain order and prevent the creation of child victims. The act of sexually assaulting any child is a trespass on humanity and must not be tolerated. The act of sexual offense of a child does not become excused by any fact pertaining to the child including labels, past history, gender and race. These are status identifiers and cannot be used to circumvent due process rights that are in place to protect the status of being a child.
The Texas Supreme Court’s ruling is an indicator of where the evolving standards of decency place the blame of the crime. The ruling establishes that there is no excuse for the sexual exploitation of a child. This ruling will provide help to other children in this situation and who are under duress. The ruling defines what we, as a society, believe to be unacceptable. This ruling rightfully defines to law enforcement that the child has a right to be protected and the adults involved in the crime are the true offenders. The future cases of child exploitation must be seen through the Texas Supreme Court Justice’s eyes and the realization of the whole issue at hand begs to be resolved through criminal charges towards the true perpetrators of the crime.
Works Cited
"13-year-old Bonita Springs Boy Accused of Raping 3 Kids under 12 » Naples Daily News." Naples Daily News: Local Naples, Florida News Delivered Throughout the Day. Web. 02 Mar. 2011.
Bartollas, Clemens, and Stuart J. Miller. Juvenile Justice in America. Upper Saddle River, NJ: Prentice Hall, 2010. Print.
Gaines, Larry K., Victor E. Kappeler, and Karen S. Miller-Potter. Policing in America. Cincinnati, OH: Anderson Pub., 2003. Print.
Ginsberg, Benjamin, Theodore J. Lowi, and Margaret Weir. We the People: an Introduction to American Politic
New York: Norton, 2003. Print
Samaha, Joel. "Chapter 6 Excuse of Age." Criminal Law. Belmont, CA: Wadsworth, 2011. Print.
The oral arguments video put this case into perspective. To read the case is one thing, yet, to see and hear the persons involved and the Justices asking for clarification brings the heart of the matter into focus. The respect the lawyers give to the court while presenting their side of this case is also noted. The lawyers on both sides also seem nervous to be presenting this to the Texas Supreme Court. The issue at hand is brought into focus by seeing the persistence the Justices give in making sure they understand all the aspects of this case.
The passion that each side and the Justices are speaking on is truly amazing. There is oblivious compassion shown by Justice Harriet O’Neill when she is speaking on prosecutorial discretion and how it failed B.W. in this case. She states that the adjudication will have repercussions on B.W. for the rest of her life. Justice Eva Guzman questions the fact that there was no investigation and if the other police departments have other means for dealing with these kinds of cases instead of adjudication. Attorney Michael A. Choyke states that the “plain language of a statute is not to be considered as legislative intent if it leads to absurd results.” This statement summarizes the whole of the case in the fact that the two laws in question allowed for a minor child victim to become adjudicated.
The statutory argument is volleyed by all participants for questioning and clarification. Chief Justice Wallace is showing concern for the creation of more victims if a ruling in favor of B.W would demonstrate to the populace at large that children are not capable of being charged and adjudicated for prostitution, he asks “what is the incentive to make a child abstain from this behavior? His question tells much about his views on punishment and crime deterrence. It would appear to some that Chief Justice Wallace is a supporter of the prevention of crime by general deterrence theory. This method of deterring crime may work for consenting adults, but not for a child under duress as in this case.
The frustration in trying to prove the facts to support the argument is also noted on both sides. The defense is establishing that the adjudication is without any basis in the law by using a clever analogy to a protection train that B.W. should be on yet; she is on the prosecution train. Attorney Anne E. Johnson states “…requires that she immediately be taken off the train, Justice O'Neill, at the minute they discovery that she's a child, and they put her on a protection train”.
Attorney Daniel C. McCroy is defining the precedence setting case “… the statute upon which the defendant is relying, the Petitioner, the Aggravated Sexual Assault Statute, 22.021, if you look at the literal text of that statute, nowhere in that statute does is say that a child under the age of 14 cannot consent to sex. What it does say is that the consent of a child under the age of 14 is not relevant, does not serve as a defense for a sexual assault offender”. The point he is making is that the case rule of 14 years to consent do not apply in this case, it applies to a youth being able to consent to sexual relations with an adult in the adults favor. The consent age is to address the issue of rape against the child, not the child’s age as being able to be a perpetrator of a sex crime. His point may have been better defined as being stated by switching genders. I would have made the point by declaring that if a 14 year old boy forced himself on a woman he could not be charged with rape because he is too young to consent to sex. The following referenced case would have been given (or a similar one) and realization they must move to acquit the 13 year old boy – because according to B.W.s case argument, no crime occurred.
“A 13-year-old Bonita Springs boy stands accused of raping two girls and a boy, all younger than 12.The boy was charged with three counts of sexual battery by a child under 18 on a child younger than 12 and one count of fondling. According to a Lee County Sheriff’s Office report: Deputies were notified Jan. 23 that three youngsters were the victims of a sex crime. A girl told investigators the suspect had touched her private areas more than one time and always while she was alone with him. She also said he had raped her. The incidents occurred while they lived in Texas and she was in the second or third grade. Another girl said he also touched her and raped her several times, including about a month earlier. She said her family had moved from Texas and the incidents occurred about five times since the family has lived in Bonita Springs. She said the incidents occurred in a trailer behind her house and the suspect told her not to tell. The second girl also said he had done the same thing to a boy. The boy said the suspect told him he had sex with the two girls while they lived in Texas. One time when he visited the boy’s house in Texas, he asked him to do a sex act. The boy refused, but when the suspect moved to Bonita Springs, he asked the boy if he remembered about their prior conversation.” http://www.naplesnews.com/news/2011/feb/08/13-year-old-bonita-springs-boy-accused-raping-3-ki/
Furthermore, this age requirement is unconstitutional because it discriminates by gender and violates equal protection under the law that is afforded by the 14th Amendment (Ginsberg, a14). The age of consent is used in consent cases of female children not male. The quoted case does not, of course, need an acquittal- although it does make a point about the minds of 13 year olds and the disparity created by gender and age as status of the offender. If the courts do stand by the 14 year old to consent to a sexual act then the 13 year old boy cannot be guilty of rape.
The interest given to this case by the Justices is also exposed by type of questions and the statements they make. It is oblivious Justice O’Neil, and Justice Guzman have the 13 year old in there heart as a victim. Chief Justice Wallace and Justice Green are leery to rush to call this 13 year old child a victim. Justice Green states that she may try to get out of charges by saying “I committed no crime”.
The insightful statement rings true in this case, B.W. is a victim and an offender. Because of her age she is mostly a victim. It is revealed that B.W. is in fact a guest under the juvenile justice system and is committed at the time of the trial. She is being punished as an offender. The victim needs help to recover her life.
The insightful angle provided by the viewing of the oral arguments rather than reading them is the amount of courtroom crosstalk that is occurring. The justices often cut each other off and then excuse themselves. They assault the case arguing council with questions from every side of the argument and demand the rapid response from the council. The counsel has been in court with one judge and that is very demanding in any court case. I cannot imagine trying to please nine of them and argue the case effectively with all nine asking questions at the same time. This is a judicial gauntlet and it is no wonder why the attorneys often look like deer caught in the headlights.
Decision
Dana Cowan is in concurrence with the opinion delivered by Justice O’Neill, in which Chief Justice Jefferson, Justice Hecht, Justice Medina, Justice Green, and Justice Guzman Joined. The intent of the legislature was not to create a sex offender at the age of thirteen by the blanket adoption of the Texas penal codes into the Juvenile Justice System. The adjudication of a thirteen year old child for prostitution causes the victimization of the child twice. One victimization by the child having to do the act, the other victimization for the lack of protection given to her by the prosecution of her – to the end of her adjudication.
The Feminist Theory of Delinquency argues “that girl’s victimization and the relationship between that experience and girls crime have often been ignored” (Bartollas, 81). This theory indicates that there is a direct causative result in crime due to the abuse of a female child. The female child that is delinquent is often acting in result of the crime perpetuated upon her. The causative factor of the result is more often than not ignored and the female child seldom ever gets help with the initial trauma. Females in the Juvenile Justice System are composed of a substantial number of victims.
The victimization is both physical and sexual (Bartollas, 81). The adjudication of B.W. is creating a stigma that will follow her for the rest of her life and will prove fact to the Labeling Theory. B.W. will be known in future by parents, teachers and law enforcement as a prostitute. This negative cultural tagging will affect every aspect of her life including simple decisions, motherhood and employment abilities. This adjudication is inherently oppressive and destructive to the future hopes of a life ability to participate in the defended right to the pursuit of happiness granted the American citizen.
The assumption by the prosecution that the whole is greater than the sum of its parts is inherently and grossly faulty. B.W.’s actions as a whole demonstrate the delinquency of a youth. The acts that make up the whole create the necessity to identify that B.W. is a victim and has been victimized by adults due to the nature of her delinquency. The denial of the due process investigation not only violates B.W. it condones the adults actions by discretionary investigating. There is no excuse for this discretion. Perhaps the investigation may indeed create a light to be shined on the involvement of persons within the system that seeks to punish her.
The adults, all of them, who used her services in any way as she earned her money should be identified and convicted of sexual assault on a minor child and hence be known as a registered sex offender. The rape of any other child of the age of 13 years would require the same action. Is it of any consequence that B.W. has received the label? She is in fact still a child and any person who assaulted her should be sought out and convicted – this enforcement of justice would require the law enforcement to actually stand up and do their jobs. The failure in this case is in the confusion of law enforcements job description, the confusion of what is right caused by the labeling of a child – who was at one point an innocent child. The frustration towards a child who is not conforming to society begs the question “Why?” I must not be resolved with the response “Because we have not punished her enough!”
Police are more likely to arrest a female if she violates traditional role expectations for females, such as failing to obey parents, being sexually promiscuous, or running away from home. (Bartollas, 96) The blinders of society to the female delinquent must be examined to discern where the justice lie in the crime B.W. is convicted of. In the growing use of children as sexual objects in the sex trade it must become clearly defined that no matter the assumptions of law enforcement about the child the Penal code violation lies with the adult sexual abuser.
The causative issues at hand is the trends and black-market demand created by sex offenders as defined by Gaines in Policing in America “Prostitution is a compelling social problem because the number of underage people engaged in prostitution. Many female prostitutes are underage, and there is a significant clientele that prefers underage prostitutes. Prostitutes often have long histories of sexual and physical abuse by family members often beginning at the age of 10 or 12” (Gaines, 253).
The life experiences that have produced the result of a child involved in the sex trade cannot be assumed to be of choice by the child and must be seen as worse than imagined- Therefore a thorough investigation into the child’s life must proceed. The events in a child’s life are unknown and cannot be assumed to be irrelevant. The investigation should start where the child did, at home and within the family and radiate out from said point. The violations of the child on the level of physical and sexual abuse must be prosecuted. Each offence is a separate count and a separate act of abuse against the child and is a violation of the Texas Penal Code.
Any person who had sexual relations with B.W. over the age of 14 years should be required to stand trial and must be known to society as a registered sex offender to protect the society form such offenders. If there is a movement to stop the human trafficking that has taken hold in today’s society the absolute zero tolerance stance must be a part of said movement. Anything less than this strong stance is in effect trying to catch the wind with an open hand. It will be in vain and create an ocean of new victims. The changing society with the tolerance of abusing the child must be halted. The children of our society are not a commodity at the disposal of perpetrators in the sex trade.
In State v. K.L.R an eight year old child was convicted of residential burglary by the Superior Court, Clallam County. The child did in fact do the crime and in the court records the mother admitted beating him black and blue. The court ruled that children between the ages of eight to twelve are incapable of committing crime unless they have the capacity to know it was wrong. B.W. may have known her actions were wrong (Samaha, 193). B.W.’s duress must be taken into account for an excuse to this crime. The defense of duress is justifiable in this case due to the nature of the crime and is excusable. The actions of the sex offense alone are supporting the excuse defense. The accepting of money for the act is further supporting that the crime is a learned or forced behavior.
The respondent claims that the May 1996 case does not indemnify the accused of the crime due to the nature of May. The case is a rape case and the offenders are reversed in the case indicating the consent issue to be mute because it does not explicitly state that children under the age of 14 cannot consent to sexual acts. Respondent Dan McCrory, the Assistant District Attorney of Harris County, Texas calls the basis of status cause for acquittal “Legal Fiction”. The assumption of age creating innocence may be in fact legal fiction. The common sense of the issue would suggest the adoption of the legal fiction into law and become policy in the best interest of the children caught up in the sex trade. Respondent Dan McCrory does admit that the case is not a case where he can feel good about the conviction of a child. He states there are no winners in this case.
Conclusions:
The conclusion of this case may allow for B.W. to have a better life in the future, the reversal of her adjudication may lead to the provision of mental health and a prevention of adversarial, lifelong labeling of B.W. that allows for the chance of a normal life. The petitioner’s legal team can have a sense of accomplishment in the ruling. Respondent Dan McCrory is still employed as an Assistant District Attorney of Harris County, Texas and may see these types of crimes in a different light due to the ruling.
The society at large is under attack by the desecration of morals as the sex trade takes hold and the unidentified sex offenders continue to create the market demand for young children to be exploited. The laws do not go far enough into the causation of such crimes to identify at risk youth, or to seek out punitive results on the adult perpetrators of heinous crimes against children. Since this ruling the issue of human trafficking has become a greater force to be dealt with in current society.
The revision of laws to allow for enhanced punitive consequences to the underground human trafficking world and the players in it on any level is a necessity to maintain order and prevent the creation of child victims. The act of sexually assaulting any child is a trespass on humanity and must not be tolerated. The act of sexual offense of a child does not become excused by any fact pertaining to the child including labels, past history, gender and race. These are status identifiers and cannot be used to circumvent due process rights that are in place to protect the status of being a child.
The Texas Supreme Court’s ruling is an indicator of where the evolving standards of decency place the blame of the crime. The ruling establishes that there is no excuse for the sexual exploitation of a child. This ruling will provide help to other children in this situation and who are under duress. The ruling defines what we, as a society, believe to be unacceptable. This ruling rightfully defines to law enforcement that the child has a right to be protected and the adults involved in the crime are the true offenders. The future cases of child exploitation must be seen through the Texas Supreme Court Justice’s eyes and the realization of the whole issue at hand begs to be resolved through criminal charges towards the true perpetrators of the crime.
Works Cited
"13-year-old Bonita Springs Boy Accused of Raping 3 Kids under 12 » Naples Daily News." Naples Daily News: Local Naples, Florida News Delivered Throughout the Day. Web. 02 Mar. 2011.
Bartollas, Clemens, and Stuart J. Miller. Juvenile Justice in America. Upper Saddle River, NJ: Prentice Hall, 2010. Print.
Gaines, Larry K., Victor E. Kappeler, and Karen S. Miller-Potter. Policing in America. Cincinnati, OH: Anderson Pub., 2003. Print.
Ginsberg, Benjamin, Theodore J. Lowi, and Margaret Weir. We the People: an Introduction to American Politic
New York: Norton, 2003. Print
Samaha, Joel. "Chapter 6 Excuse of Age." Criminal Law. Belmont, CA: Wadsworth, 2011. Print.
Tuesday, November 30, 2010
What would you like the juvenile justice system to look like by 2040?
I would like to see all court proceedings on-line, including the Supreme Court. The criminal court would be presented in a way that reduces bias. The facts of the crime are presented and mitigating and aggravating facts are presented - race and sex of accused are withheld, only then can justice be blind.To complement this online court an amicus curiae will be able to be filled by everyday people on rulings of the court in the form of a discussion ,much like this one. I think the imprisonment of the innocent will be reduced. The juvenile section of criminal justice is going to be re-vamped to help the person they will become- not so much focus on where they have been and the mistakes that they made.It is my hope that the child will be granted the same rights as the adult in court- at least a jury trial. I feel that the society will be recorded at all times in public- we are almost there now. I also feel that no matter what advances are made in criminal justice there will be crime because people are emotional beings and often these emotions overrule cognitive ability. The advances towards a just society are always going to have the downfall of the conflict theory. That being said , I also feel that there will be a minority shift within the conflict theory- meaning that affluent white people are going to loose their power, become underrepresented in congress and become the minority in the population. This flip is going to provide for a reverse-racism type scenario. I could be wrong, Maybe we will eliminate racisim and get the balance of justice right in the near future.The choices we make today are going to carry us headfirst into the future. We would be wise to give thought pre-action than to give regret post-action. p.s. I have truly enjoyed all the posts of the class. Thank you for making this a great class - I learned so much from yall! It's Priceless! : )
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