Comment

Attorneys: 30 Days in Prison Enough for Rapist

7
ThomasLite3/01/2014 7:47:35 am PST

Hmm, that deserves a rather long and complicated response. I certainly don’t agree with the point they’re making (let alone insinuating) from what I’ve seen. Then again, any litigator trying limiting himself strictly to arguing the obvious is probably doing his client a disfavour, so I will rail against anyone conflating an attorney’s argument in adversarial proceedings with what he might think to be a good policy argument or whatever any day of the week.
From what I’ve seen of you, I think we can agree there, at least?
And wouldn’t you agree that arguing in favour of attorneys getting disbarred for a vigorous defence, even if the argument is hopeless, is offensive? (and really, every criminal defence practitioner is going to have a dog of a case to at least try to defend at times - heck, that’s often where the societal value of defence can be the greatest, even if that might not be the case here).

Really, as soon as they try this in a political context I’ll agree they ought to be dragged through the mud. Arguing “the law is wrong”, however, is just the pounding the table stage, when both fact and law are against your client already. Again, vigorous defence and whatnot.
Also, the argument seems a little more complicated: they’re arguing development in one field (liability for minors) should perhaps reflect in another, related, field. That’s not so much using a grey area as trying to find one, but it’s not an argument that “the law is wrong” out of the blue. Nitpick, though, and not really one I find all that important, even.

As to age of consent, that’s always a tricky one.
I do think that, given certain conditions, there are plenty of minors who know pretty well what they’re doing. Criminal law is not my field, and the US is a heck of a long way away so please correct me if I’m wrong, but AFAIK there have been several examples of kids sexting and getting convicted for child pornography for example, or the ever present 17y old with a 15y old partner whose parents hate said 17y old; I do prefer the way that Dutch courts, at least in practice, tend to ascribe more appropriate amounts of agency/capacity on an individual basis rather than the by-the-numbers approach.

Now, does any of that reflect on other-than-statutory sex offences? Not really. While I will argue that at least, one should consider the possibility of informed consent by minors (to a degree, of course - I hope you’ll be above the usual strawmen one might encounter here - we’re all reasonable folks :) ); I have no problem accepting (actually, I’m quite in favour of it) that anything even remotely forceable against a minor should not ever, ever have a snowball’s chance in hell of seeing such an argument succeed.

Then again, I find the whole “but she kinda provoked it” argument even in mitigation of forceable rape/ other sex offences against adults equally offensive, so in my ideal world no distinction would be required. Still, since that seems to be a thing now, and for the foreseeable future, let’s keep it out of cases involving minors especially for now.

None of that, however, changes one iota of my point that (and let’s explicitly state the previously implied premise here, too:) as long as either judges or juries, or both, depending on what might make a difference, do ascribe some value to such offensive arguments (and let’s be honest - they do), any attorney not at least having a go at it if it might work to his client’s advantage is, IMO, severely unethical and should be disbarred if he even remotely makes a habit of taking cases he seemingly cannot, in good faith, defend as vigorously as he ought to. Adversarial system, and whatnot.
And yes, I’m reasonably well aware of the difference between attorneys as officers of the court in the US, and the lack of such a formality here - but it doesn’t make a difference in the world to my mind.