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Author Topic: STANDOUT CASES  (Read 9816 times)

robmelone

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Re: STANDOUT CASES
« Reply #30 on: August 30, 2006, 02:25:13 PM »
We are reading Cetacean Community v. Bush in Con Law.  Whales suing Bush.. .it's a classic!

Rob
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Highway

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Re: STANDOUT CASES
« Reply #31 on: August 30, 2006, 03:57:39 PM »
The Crim Law rape case where the Doctor convinces his patient that she has some fatal disease that can only be cured by this medicine that has to be vaginally inserted and that the only tool that could be used to properly insert it was his penis. If I remember correctly the guy got away with it because the fraud was in the inducement of sex, not the act itself. The court explained this by distinguishing it from a case where another Doctor had told a patient to turn around so he could insert some inanimate medical device into her, but the only device he inserted was himself. The difference being that the woman did not actually consent to the act of sex itself.

...The best part of the whole experience was that as we left the classroom and while everybody was talking about how funny the case was the janitor's radio was playing "sexual healing" pretty loudly. True story.

Can i get the name of the case?

BORO v. SUPERIOR COURT, 163 CA3d 1224 (1985)

You can find it at: http://online.ceb.com/calcases/CA3/163CA3d1224.htm

This is why people hate lawyers.

Italian2L

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Re: STANDOUT CASES
« Reply #32 on: August 30, 2006, 04:38:36 PM »
The Crim Law rape case where the Doctor convinces his patient that she has some fatal disease that can only be cured by this medicine that has to be vaginally inserted and that the only tool that could be used to properly insert it was his penis. If I remember correctly the guy got away with it because the fraud was in the inducement of sex, not the act itself. The court explained this by distinguishing it from a case where another Doctor had told a patient to turn around so he could insert some inanimate medical device into her, but the only device he inserted was himself. The difference being that the woman did not actually consent to the act of sex itself.

...The best part of the whole experience was that as we left the classroom and while everybody was talking about how funny the case was the janitor's radio was playing "sexual healing" pretty loudly. True story.

Can i get the name of the case?

BORO v. SUPERIOR COURT, 163 CA3d 1224 (1985)

You can find it at: http://online.ceb.com/calcases/CA3/163CA3d1224.htm

This is why people hate lawyers.

For giving citations without links or for arguing that fradulent inducement to sex isn't rape? Seriously though, I agree that what the defendant did was morally reprehensible, a clear abuse of his fiduciary duties to the patient, and should result in him being barred from practicing medicine at the very least, but rape? I don't know, maybe I'd be inclined to agree if you can convince me that a clear line can be drawn between this incident and any other situation in which a girl consents to the act of sex because of a lie, but right now I just don't see it. Even if you can draw such a line I still don't see the connection between unwanted penetration by force and what happened here. Maybe it should be criminal, but I just don't think its rape.   

Highway

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Re: STANDOUT CASES
« Reply #33 on: August 31, 2006, 08:17:56 AM »
I'm not saying it was rape under the statute. What I am saying, though, is that people hate lawyers for drawing such technicalities when it was clear that this guy should be locked away.

The lawyer is doing his job, but the lay public probably doesn't see it that way.

Italian2L

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Re: STANDOUT CASES
« Reply #34 on: August 31, 2006, 11:06:21 AM »
I'm not saying it was rape under the statute. What I am saying, though, is that people hate lawyers for drawing such technicalities when it was clear that this guy should be locked away.

The lawyer is doing his job, but the lay public probably doesn't see it that way.

What I'm saying is that the prosecutor should have gone for a lesser offense because what this guy did clearly isn't rape under any statute or the common law. Maybe he actually did and the opinion just doesn't mention it because the conviction for the lesser included offense wasn't appealed.

And as far as the lay public goes, you're statement assumes that the lay public will see the difference between forced, unwanted penetration and lying to obtain consent as a 'technicality'. Personally, I think there is a huge difference between the two and I think a lot of the lay public could see that as well.

Do you think that most lay people would support a murder conviction for somebody who assaulted somebody but didn't actually kill them just because the prosecutor was too incompetent to charge him with the right crime? 

Highway

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Re: STANDOUT CASES
« Reply #35 on: August 31, 2006, 11:26:24 AM »
You give the lay public a lot of credit for being intelligent. I'm not so giving.

The prosecutor is going to go for anything and everything they can, rape included. That is their job. They don't have to make everything stick - just one thing.

Do you really think the public knows, or even cares, about the statutory definition of rape? The public, at large, is going to hear about this crime and think the guy that did it is a scumbag. They don't care if he "raped" her as defined by a statute. They want him put away. His lawyer is going to argue against the charges (which is his job), but I would venture to guess that all the public sees is the injustice of another scuzzy lawyer gets his client off.

My original post was not meant to say that the outcome of the case is wrong, or the lawyer was wrong to contest it. Merely to say that people don't like lawyers because of stuff like this. They don't understand the intricacies of the law.

Italian2L

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Re: STANDOUT CASES
« Reply #36 on: August 31, 2006, 11:38:41 AM »
You give the lay public a lot of credit for being intelligent. I'm not so giving.

The prosecutor is going to go for anything and everything they can, rape included. That is their job. They don't have to make everything stick - just one thing.

Do you really think the public knows, or even cares, about the statutory definition of rape? The public, at large, is going to hear about this crime and think the guy that did it is a scumbag. They don't care if he "raped" her as defined by a statute. They want him put away. His lawyer is going to argue against the charges (which is his job), but I would venture to guess that all the public sees is the injustice of another scuzzy lawyer gets his client off.

My original post was not meant to say that the outcome of the case is wrong, or the lawyer was wrong to contest it. Merely to say that people don't like lawyers because of stuff like this. They don't understand the intricacies of the law.

Well, I guess we'll just have to agree to disagree. Personally, I'd say a very large percentage of the 'lay public' that I know understand rape as a violent crime and are capable of seeing the difference between violent rape and lying to/taking advantage of somebody to get them to have sex with you. On the other hand, I'll admit that I hang out with a very educated crowd, and that even my friends who didn't go to college tend to be very smart, so I probably do give the lay people in general too much credit.

J D

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Re: STANDOUT CASES
« Reply #37 on: August 31, 2006, 04:01:00 PM »
I'm not saying it was rape under the statute. What I am saying, though, is that people hate lawyers for drawing such technicalities when it was clear that this guy should be locked away.

The lawyer is doing his job, but the lay public probably doesn't see it that way.

What I'm saying is that the prosecutor should have gone for a lesser offense because what this guy did clearly isn't rape under any statute or the common law. Maybe he actually did and the opinion just doesn't mention it because the conviction for the lesser included offense wasn't appealed.

And as far as the lay public goes, you're statement assumes that the lay public will see the difference between forced, unwanted penetration and lying to obtain consent as a 'technicality'. Personally, I think there is a huge difference between the two and I think a lot of the lay public could see that as well.

Do you think that most lay people would support a murder conviction for somebody who assaulted somebody but didn't actually kill them just because the prosecutor was too incompetent to charge him with the right crime? 

One thing you have to take into account is whether, under the laws of that jurisdiction at the time, there was a lot of grading of various levels of sexual offenses.  The creation of different and progressively more serious sexual assault crimes in the criminal law is a relatively recent phenomenon in many places.  It's possible (don't know for sure) that there wasn't any kind of lesser offense besides rape that he could be prosecuted for (maybe assault/battery, but you run into the same problem as with rape: she technically did consent to the touching, though under false pretenses).

And generally, the revocation of a license to practice medicine is an administrative proceeding undertaken by the Medical Board, and is entirely independent of criminal prosecution.  I wouldn't be surprised if the guy got his license revoked notwithstanding the fact that he wasn't criminally liable under the rape statute; the board could decide to pull the license anyway, even if he's acquitted.
"I never think of the future.  It comes soon enough."--Albert Einstein

Italian2L

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Re: STANDOUT CASES
« Reply #38 on: August 31, 2006, 04:27:51 PM »
One thing you have to take into account is whether, under the laws of that jurisdiction at the time, there was a lot of grading of various levels of sexual offenses.  The creation of different and progressively more serious sexual assault crimes in the criminal law is a relatively recent phenomenon in many places.  It's possible (don't know for sure) that there wasn't any kind of lesser offense besides rape that he could be prosecuted for (maybe assault/battery, but you run into the same problem as with rape: she technically did consent to the touching, though under false pretenses).

And generally, the revocation of a license to practice medicine is an administrative proceeding undertaken by the Medical Board, and is entirely independent of criminal prosecution.  I wouldn't be surprised if the guy got his license revoked notwithstanding the fact that he wasn't criminally liable under the rape statute; the board could decide to pull the license anyway, even if he's acquitted.

You're right. I shouldn't have been so quick to blame the prosecutor without more contextual information or without considering the fact that the same underlying conceptual problem would probably apply to LIOs just the same as it applies to rape. However, that doesn't change the fact that dude simply did not commit rape.

Regarding the revocation of the license to practice medicine, I wasn't implying that it was a matter relevant to criminal prosecution, I was merely establishing the fact that I personally think that the defendant's actions were morally reprehensible and that he should have been subjected to any sanctions that fit the crime, whether criminal or not, so that I couldn't be attacked later on in the argument for defending his actions from any kind of moral standpoint.

robmelone

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Re: STANDOUT CASES
« Reply #39 on: September 03, 2006, 09:49:04 AM »
I love "Cetacean Community v. Bush" where the whales sue Bush over low frequency sonar being used by the Navy (the court rules that they don't have standing).

Rob
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