Wednesday, November 30, 2011

Professor Accused of Viewing Child Pornography on Flight

This news story would make one of those dumb criminals lists if it were not so awful:
A University of Utah professor pleaded not guilty today in an East Boston courtroom to charges that he viewed child pornography on his laptop while flying from Salt Lake City to Boston.
What could account for this professor's behavior?  Stupidity?  Compulsiveness?  Arrogance?  An unconscious desire to get caught?

However, this is the part of the article that caught my attention:
Prosecutor Erik Bennett said that a passenger seated behind Smith’s first-class seat on the Delta flight on Saturday took a picture of what Smith was doing and sent a text message to his son with the picture, asking him to contact Massachusetts police.
Given how broadly child pornography laws are written, it seems that the passenger and his son probably broke the law.  Crazy, isn't it?  By looking at the professor's laptop, the passenger is guilty of viewing child pornography.  Since he took a picture of the picture on the laptop, he is also guilty of producing child pornography.  Since he sent it to his son, he is also guilty of disseminating child pornography.  The son likewise is guilty of receiving -- and viewing -- child pornography.  Crazy.

Obviously, the Boston police have no intention of arresting these good Samaritans.  But, how many people may find themselves in a similar situation, and they do not get involved because they do not want the authorities to falsely accuse them of somehow being involved in the crime?  In this way, poorly written laws fail to protect children because the laws scare away people who might come forward and report crimes against children.

The abuse of children is a terrible evil.  However, laws meant to protect children are often haphazardly written.  Consequently, the laws often do a very poor job of protecting children.  Perhaps one good thing that can come out of the recent attention on child sexual abuse is that we will give these laws a thorough going-over with an eye toward improving them.  Such a review is already under way in Pennsylvania, where legislators are looking at improving the child abuse reporting law.

See the original article here:

Monday, September 19, 2011

Does a Bad Economy Cause Child Abuse?

As many of you know, I represent parents against allegations of abuse, neglect, and dependency.  These cases arise when the Department of Social Services seeks to take children from their parents.

Some of the most heart-breaking cases that I get are "shaken baby" cases.  This vivid term is something of a misnomer.  It actually involves any physical injury to a child, especially a child too young to communicate.  Sometimes these injuries result in death, and sometimes they result in permanent disfigurement.

Yet, these cases are disturbing to me for a number of other reasons.

First, health care providers and police now seem predisposed to see any injury as evidence of a criminal act.  A child is injured, therefore someone must have intentionally caused the injury.  There is a medical definition for non-accidental injury, but it is ambiguous enough to fit whatever conclusion the doctor is predisposed to reach.  For instance, I used to think that a "cluster of injuries" meant two or more injuries, of the same kind, in different places or in different different stages of healing.  Now it seems that doctors can describe any two injuries as a cluster.  Sometimes it seems to me as if there is no such thing as an accident any more.

Second, investigators use what seem to me to be questionable methods to build their criminal case.  Often, they will sidestep their legal duties and get the social worker to ask their questions for them.  They will try to get the parent to state that no one else has been with the child for a certain period of time.  That makes the investigator's job easier because it narrows down the possible suspects, hopefully to only one.  Then no further investigation or evidence is required:  The police have a hurt baby, a doctor who says it is abuse, and only one person who had custody of the child.

Third, these cases generally move on two tracks with conflicting goals.  In criminal court, the police and district attorney try to punish the perpetrator.  In civil court, the Department of Social Services tries to take custody of the child away from the parents.  In every case in which I have been involved, this two-track phenomenon has caused a mess.  The civil case drags on because we want to see what happens in the criminal case.  The parents cannot make progress on their case plan because their attorneys have warned them not to make incriminating statements.  If the goal of civil court is to reunite children with their families when that can be done safely, then the intervention of criminal authorities is unhelpful, to say the least.

This article from the Winston-Salem Journal suggests that there may be an increase in child abuse, and that increase may be tied to the stress of a bad economy.  I am not inclined to agree.  I think that an increase in child abuse cases being reported comes largely from doctors being more vigilant and reporting more cases to the authorities.  Also, my experience is that child abuse comes not from economic status but from ignorance.  Inexperienced parents do not know what to do with a crying baby, and then they get frustrated, and then they do the unthinkable.  Rather than blaming the economy and shrugging the problem off, we could be teaching young people how to be good parents and preventing the problem in the first place.

Friday, August 12, 2011

Legal Aid of North Carolina Closing Boone Office

When I was a law student, I worked two summers for legal aid.  At that time (was it really over fifteen years ago?), the legal aid office in Winston-Salem was in a rickety office building on Fourth Street.  The top floor wasn't used because the roof leaked.  The elevator hadn't worked in years.  I loved it.

I felt that I was doing real lawyering.  I learned to interview clients, prepare lawsuits, everything but appearing in court.  The people I worked with were committed to helping ordinary people and gracious about teaching the basics to an inexperienced law student.  You don't work at legal aid to get rich, and they were there because they loved what they were doing and saw it as a calling.  I hope that my experience there and then helped me to become a better lawyer.

Years later, legal aid sold that old office building.  Coincidentally, legal aid's office is now in the same building as my office, on the same floor.  Now, in addition to representing people in the traditional attorney-client relationship, legal aid gives free classes on representing yourself in some kinds of cases.  And, legal aid still mentors bright young law students through a domestic violence clinic. 

North Carolina, like many states, is struggling through this economy.  Over 3.2 million North Carolinians meet the definition of poverty that legal aid uses.  That's 35% of the population.  Without legal aid, those millions of people would have no legal representation.

As a lawyer, I believe that one of the things that defines civilized society, and differentiates us from lawless anarchy, is that we have a court system for the redress of wrongs.  That system doesn't work if a whole segment of our society can't get access to it. 

Legal aid has been unpopular in DC and Raleigh for decades.  So I should not have been surprised to read that legal aid's funding has been cut again in the latest round of budgets, and 30 people are being laid off across North Carolina.  I've been told that is about ten percent of the work force.  Western North Carolina seems to have taken the brunt of the layoffs.  Boone's whole office is closing. 

Something can be done, however.  Please consider donating to your local legal aid's Access to Justice Campaign.  Here is North Carolina's:

Thursday, July 14, 2011

JAMA Proposes Taking Obese Children from Parents

According to David Ludwig in the Journal of the American Medical Association, states should take obese children from their parents and put the children in foster care.

After all, obesity can increase the risk of many diseases.  Obese children may develop life-threatening conditions later in life.  Therefore, allowing a child to be overweight is a kind of child abuse, and the state must step in to protect the child.

However, it is impossible to single parents out when a child is overweight.  Many factors contribute to a child's weight.  As University of Pennsylvania bioethicist Art Caplan notes, "obese children are victims of advertising, marketing, peer pressure and bullying, things a parent can't control."  Yanking children out of their homes does not address those other factors.

States are already struggling to provide basic services.  Child abuse cases can go on for a year or more, and every case will require bailiffs, clerks, judges, attorneys, and social workers.  Every child will require a state-subsidized foster home, which are already in short supply.  If the state gets its hands on the two million overweight children in America, the entire system will collapse under the added case load.

This proposal is an unprecedented expansion of the state's intrusion into parenting.  Foster care should be a last resort when it is truly necessary to safe a child from imminent harm.  If letting a child gain weight is to be considered child abuse, then there is no end in sight.  Not brushing, not flossing, staying up too late at night?  Here comes the state, which knows better and has to protect your children from you.

States can and should step in when a parent's actions directly endanger a child.  However, states can not and should not interfere with parenting on the tenuous basis that a parent maybe is not doing enough to prevent a condition that may increase the risk of health problems years in the future.  As with most well-intentioned but poorly-thought-out proposals, the consequences are worse than the supposed cure.

North Carolina's statute on child abuse is here:

The Winston-Salem Journal article on David Ludwig's proposal is here:

Tuesday, July 5, 2011

New York Passes Marriage Equality Bill

Recently, New York became one of a growing number of states to recognize same-sex marriages through legislation.

The New York statute refers to "marriage" rather than "civil unions."  This terminology is important for more than just symbolic reasons.  A married couple automatically gets the rights (and responsibilities) of marriage, while the legislature has to pick and choose what goes into a civil union.  Despite New York's move, however, uncertainties and difficulties remain for some same-sex couples.

The New York statute contains an exception for religious institutions.  Certainly, the exception means that religious officiants will not be required to perform same-sex marriages if their religious tenets prohibit it.  Such an exception seems reasonable, if not possibly required by the First Amendment.  However, the exception also appears to immunize religious institutions and charities from discrimination lawsuits if they discriminate against same-sex married couples in public accommodations.  In other words, the courthouse doors may be closed to same-sex married couples in discrimination cases where they would be open to different-sex married couples.  Such an exception would seem to be an extraordinary setback for same-sex couples.  Time will tell how far-reaching this language actually extends.

Many states have a residency requirement to obtain a marriage license.  New York does not.  However, out-of-state couples may not want to go to New York to get married.  Problems may arise when they return to their home state.

A same-sex couple married by the State of New York may find it of limited benefit to them in their home state.  Many states have passed "Defense of Marriage Acts" or similar constitutional amendments.  These acts and amendments generally prohibit same-sex marriage in the state, refuse to give full faith and credit to out-of-state same-sex marriages, and deny same-sex couples any "marriage-like" benefits.  In such states, the New York marriage may be only symbolic.

A more complicated problem can occur if the same-sex couple splits up.  The DOMA state often denies the couple the right to divorce, calling that a benefit of marriage.  New York may not have jurisdiction to dissolve the marriage, either because the couple never resided there or because the couple moved away.  In this all-too-common situation, the couple is stuck remaining married because they cannot get a divorce anywhere.

President Barack Obama has said that same-sex marriage should be an issue for states to decide.  However, the situation is not that convenient.  The federal government has to decide the marriage question in many of its own circumstances:  immigration, survivor benefits, and income tax filing, to name a few examples.  Currently, the federal DOMA denies married same-sex couples access to those federal incidents of marriage.

Despite these limitations, New York's decision to recognize same-sex couples' right to marriage is significant.  The full text of the original bill is available here.

Sunday, June 26, 2011

"Tort Reform" is Unnecesary and Harmful

"Tort reform" is a buzz word that has been circulating around North Carolina and the rest of the country for several years.

"Tort reform" laws set arbitrary caps on the amount of money that injured parties can recover from negligent parties.  Many times, these caps are far below the injured parties' projected future medical expenses, much less past medical expenses, lost wages, other out-of-pocket expenses, and pain, suffering, and inconvenience.  Large companies love these caps because it limits how much they have to pay for hurting innocent people.  In this way, "tort reform" advocates want to protect wrong-doers from having to pay the full price of their wrongs.

Sometimes, people who do not work in the legal system hear about large jury verdicts, and it outrages them.  However, they may not know the whole story.  First, large jury verdicts are the exception, not the rule.  Second, jury verdicts must be based upon the injured person's actual damages.  Large jury verdicts, when they do occur, are not a windfall:  They are a reflection of how badly the negligent party hurt the innocent party.

Some people do not deserve to be compensated.  The law already takes care of those people.  Plaintiffs must prove that they were actually injured by the defendants' negligence.  Defendants are free to try to prove at trial that they were not negligent, or that the plaintiff was not actually damaged.  Under the rules of "contributory negligence" and "comparative negligence," defendants are free to try to prove at trial that the plaintiff was the truly negligent party.  These are a few examples of the mechanisms that the law already has in place to prevent plaintiffs' unjust enrichment.  The law's existing mechanisms are more reasonable than "tort reform's" arbitrary caps.

Ultimately, arbitrary caps on damages hurt the American taxpayers.  When injured people cannot recover all of their damages from negligent parties, the compensation that they do recover runs out before the cost of their injuries do.  Then, they are forced to go on public assistance.  Negligent parties go free while ordinary taxpayers pick up the tab.

"Tort reform" protects wrong-doers and screws injured people and taxpayers.  It claims to address problems with the legal system that are best solved by existing mechanisms.  It is unnecessary, and, more than being simply unnecessary, it is harmful.

HBO is airing a new documentary on "tort reform," called "Hot Coffee."  "Hot Coffee's" web site has more information.