California is one step closer to making prison time mandatory for anyone convicted of sexually assaulting a person who is unconscious or too intoxicated to consent -- a measure inspired by former Stanford University student Brock Turner's sentence.
AB 2888 passed the state Assembly Monday by a unanimous 66-0 vote. It is headed to Gov. Jerry Brown's desk.
Lawmakers proposed the measure in June in response to the outcome in the former Stanford swimmer's trial.
Turner was sentenced to six months in jail and three years of probation for sexually assaulting a 23-year-old unconscious woman in 2015 behind a trash bin on the university's campus. Critics condemned the sentence from Santa Clara County Judge Aaron Persky as too lenient, leading to efforts to recall Persky and change sentencing laws for sexual assault.
The Santa Clara County district attorney's office had requested the maximum sentence of six years, based largely on the woman's condition.
Turner would have served the sentence in a state prison, as opposed to the sentence he is currently serving in the Santa Clara County jail. He is scheduled to be released Friday.
Under current state law, those convicted of certain sex crimes such as rape by force and aggravated sexual assault of a child are ineligible for probation or a suspended sentence and must serve prison time.
AB 2888 would amend the law to create the same punishment for those convicted of rape, sodomy, penetration with a foreign object and oral sex if the victim was unconscious or incapable of giving consent due to intoxication. [...]
Another stupid and very dangerous law. This is apparently based on the
ReplyDeleteBrock Turner incident where the perpetrator was caught red-handed by two independent witnesses. Cut and dried.
Unfortunately, in the real world, most cases are not nearly as cut and dried. People who are unconscious or intoxicated will not be able to positively identify their attackers and probably not have witnesses.
Secondly, I wonder how the legal system is going to define "too intoxicated to consent". How intoxicated is that? Will the victim need to prove that she was that intoxicated or will the accused need to prove that she wasn't?
Thirdly, why is the "victim" never held accountable for getting intoxicated (unless they were forcibly intoxicated which should be a crime in itself)?
In short. accused people will be convicted based on flimsy circumstantial evidence or on the questionable "confessions' that police can manipulate which in turn will dupe a jury. Once the jury convicts, a wise judge who may see plenty of holes in the case will be "mandated" to give jail time.
After that, the guy who may be falsely convicted gets on a sex offender registry and may be called a level three offender because he refuses to be remorseful for a crime which he says he didn't commit.
Same old, same old...
This is nothing to celebrate. To quote Rav Elyashiv Zatzal, "each and every case needs to be assessed independently by scholarly people".
Mr. Hirshman,
ReplyDeleteYou've misunderstood this legislative action. They haven't changed the parameters of rape or sexual misconduct. Most states already consider it a felony to have sexual relations with someone incapable of giving consent due to intoxication or unconsciousness.
They are mandating prison time when convicted of the offense. The legislature is merely trying to prevent judges from giving a pass to someone, as the judge did in the Brock case.
The current societal view of man is:
ReplyDelete"People are mammals, that is, evolved animals. They operate mainly on instinct. The role of the criminal justice system is to satisfy a societal craving for justice. Thus, people will get drunk from time to time and give in to base desires. It can happen to anyone. We will put people who do this in prison for a little while. Not because it will change anything. But because we have to satisfy the instinct to punish. After all, there is no absolute right and wrong, and therefore we have no right to teach people how they must behave, because one man's 'right' is another man's 'wrong'. In place of morality we have merely instincts to get drunk, to want justice, etc."
There is something good that follows from this. I work with friends to change laws in the U.S. so that the legal system will reflect an absolute morality. I have free rein to do this. People may disagree with my morality, but they perceive me as merely giving in to some instinct to be moral. Furthermore, deep down, it seems to me, many people who outwardly deny absolute morality really feel there is an absolute right and wrong. Although incarcerated in society's political correct prison, they appreciate my espousing an opposing approach.
The story goes that Herman Wouk was on a Navy ship and was ribbed for putting on Tefillin. After a night bombardment that almost sunk the ship, word went around that the ship was saved because of Wouk's "little boxes" he wore.
My point is, that mixed in with the hatred, many non-Jews have an abiding respect for Jews. Could be the hatred stems from a disappointment in our collective failure at this point in history to completely fulfill our mission to be a Kingdom of Priests.
I haven't misunderstood anything. And, WADR, I do not think you understood me.
ReplyDeleteConvictions do not always mean people are guilty. it only means that a judge or jury decided they are guilty. Judges need to be allowed to use their discretion.
California recently changed its law to provide an actual affirmative consent to sex, as opposed to an implied consent (a woman inviting a date into her bedroom, presexual activity, taking off clothing, is no longer consent to sex, in california.)
ReplyDeleteall systems need to assume they have correctly convicted the guilty - but it there is always some innocent who get caught. Your logic is that because of the small possiblity all convicted people need to be viewed as if they were from the minority. That is absurd
ReplyDeleteAgain, no they haven't. The parameters were already there. This is about sentencing only.
ReplyDeleteAnd aside from what RDE said, there are sentencing guidelines all over criminal procedure laws in every jurisdiction. What is it about this particular bill (and issue) that you find so odious?
I guess you can assume this, but this factual tidbit is totally absent from anywhere in OP or his comment.
ReplyDeleteMy logic is that once the conviction system itself has substantial flaws (for the tip of the iceberg see: https://en.wikipedia.org/wiki/List_of_wrongful_convictions_in_the_United_States ), it is folly to depend solely on the conviction record as opposed to the actual merits of the case for the purpose of assessing the proper penalty.
ReplyDeleteThis is like assessing the scholastic ability of a student based solely on what his report card says in place of a personal evaluation. Not all grade A students are achievers and not all grade C/D students are failures.
Call it absurd if you like.
I did and do
ReplyDeletea) What if they are both very intoxicated?
ReplyDeletewhat if a driver is intoxicated - does that excuse him?
ReplyDeleteI think he meant to ask who goes to jail. Both of them? It was a rhetorical question.
ReplyDeleteDo you mean to say that you are against mandatory minimum sentencing in any context? That would be a consistent position, but your first comment above does not indicate that.
ReplyDeletePrecisely. Is it only the woman's intoxication that turns her yes into a no? Does the man's intoxication render him incapable of differentiating between a yes yes and a no yes? If not, why not? This has become a major issue in campus rape cases, where they are liable to treat a woman's drunken yes as a no, but ignore the fact that the man was drunk too.
ReplyDeleteCriminally, probably won't be convicted. (Not definitely.)
ReplyDeleteCivilly, the insurance company will pay.
Sometimes, a rapist claims the victim led him on, etc claims. Rarely works.
ReplyDeleteYes, I am definitely against mandatory minimum sentencing. I am not the biggest fan of punitive imprisonment. Do you know who pays for a person in prison? That's right - YOU do. So if a judge thinks that probation is good enough for now, and maybe the guy will finish college and straighten out and wind up an asset to society, why go the route that will more likely create a lifelong societal liability?
ReplyDeleteGenerally, I agree with you that the current system is far too punitive. Yet, I am hesitant to leave all discretion in the hands of a judge, as that power is apt to be abused.
ReplyDeleteaccording to the new california law, no one consented. i highly doubt it would be prosecuted, but there are crazy prosecutors.
ReplyDelete2. i cant imagine a prosecution of a woman for rape. (unless its a teacher, or underage situation. and even then.)
I can't imagine it either, but that's my point: If the logic is that intoxication invalidates consent, then it should be true in reverse as well.
ReplyDeleteLet's look at another situation. If the law is that a severely intoxicated person can not make a valid business deal. Does that mean that he is not held accountable for hurting someone when intoxicated?
ReplyDeleteMy point is that that the victim and abuser are not in comparable situations.
Who is the victim and who is the abuser, if they're both intoxicated? Or otherwise incapable of giving consent..
ReplyDeleteAgain, if a woman seduces a man when he is very intoxicated, should she be prosecuted for rape? Is she now "the abuser" and is he now "the victim?"
ReplyDeleteDoes your question indicate that you agree with my last comment?
ReplyDeleteLast time I checked chazal said that a man can not be seduced against his will
Not a matter of agreeing or not, just that you have not addressed my point.
ReplyDeleteThis has nothing to do with Chazal. I'm discussing the secular law in its own context.
As far as I understand the law, the answer to your question is yes, she would be charged.
ReplyDeleteChazal also don't consider it rape when a drunken woman consents to sex.
ReplyDeleteThe change to actual affirmative consent in the new law only applies on campus. So far.
ReplyDeleteThey changed the law to consider digital penetration to be actual rape, whereas it wasn't previously.
ReplyDeleteHalacha goes far out of its way to push the benefit of the doubt to fall so that a guilty party is wrongfully acquitted rather than have an innocent party wrongfully convicted.
ReplyDeleteSource?
ReplyDeleteA married woman who has sex with another man is only patur from misa if she verbally objected to the sex.
ReplyDeleteyour claim was that a "drunken woman" is not considered rape - where is your source?
ReplyDeleteIf a drunken married woman consents to sex from someone other than her husband, is she patur?
ReplyDeleteThat is total nonsense. Someone who is fully intoxicated has the status of a temporary shoteh.
ReplyDeleteDo you maintain a drunken married woman who consents to sex with another man is patur from misa and halachic guilt/punishment and can remain married to her husband?
ReplyDeleteSee Binyon Tzion 154
ReplyDeleteThe case in Binyon Tzion 154 is much different than a drunken married woman who consented to sex with another man.
ReplyDeleteHe indicates that there are conditions where consent is not consent - as opposed to your view that if a woman doesn't protest that means she consents.
ReplyDeleteMy question now is whether halacha deems a married women's consent while intoxicated as consent/adultery or non-consent.
ReplyDeleteIt is a good question but I have not found anyone who discusses the issue.
ReplyDeleteMy point though is that from this Binyan Tzion it is possible to conjecture that he would say that it is not adultery. Just like the poskim who say that a minor - even if she says yes - it is considered onas
We could also conjecture that consent during intoxication is still halachic consent and she is guilty of adultery. I would venture that is a more like correct conjecture than to conjecture that she's innocent of adultery when consenting while drunk.
ReplyDeleteThose are three separate questions. 1: Yes. 2: Perhaps. 3: No.
ReplyDeletemy conjecture is that the halacha is the opposite of your view
ReplyDelete"All of which really raises the issue that halacha doesn't necessarily agree with civil law that intoxication precludes consent."
ReplyDeleteYes it does. See Eirvuin 65a and Shulchan Aruch Even HaEzer 44:3.
Thank you for quoting this thorough teshuva about the issue.
ReplyDeletejust added two more parts
ReplyDeleteDoes that patur a married woman?
ReplyDeleteYour situation is impossible. The entire point is that someone fully intoxicated cannot consent to anything, as they have no da'as. See the teshuva R' Eidonsohn cited from R' Tuvia Goldstein.
ReplyDeletethe teshuva Emek Halacha is from
ReplyDeleteביוגרפיה - עמק הלכה
Rabbi Yehoshua ben Rabbi Nachum Baumel was born in 1880 in Galicia. In spite of his youth, he was appointed head of the yeshiva in Vizhnitz in 1908; he subsequently served in various rabbinical positions. In 1922 he moved to the USA, and served as a rabbi in Brooklyn, NY. He passed away in 1948.
The first volume of Emek Halacha was published in the USA in 1934; the second volume was published in the USA in his last year, both during his life - time. Both were reissued posthumously with glosses and commentary by his nephew (and son - in - law) Rabbi Joseph M. Baumol, son of his brother, Rabbi Yoel Moshe Baumol in Jerusalem in 1976. His other nephew, also named Rabbi Yehoshua Baumol, was one of the most prominent students of Yeshivat Chachmei Lublin, and was murdered with his entire family in the Holocaust.
Thank you for the info.
ReplyDelete@Yehoshua So you're indicating that if a married woman is in a bar and gets intoxicated and goes home with an intoxicated man she met in the bar and they have a blast having sex, she is patur since she couldn't have legally consented, correct?
ReplyDeleteIf you mean exempt from court-imposed capital punishment, yes. And I am not indicating it, I am quoting a Gemara in Eiruvin that says it.
ReplyDeleteIn that scenario can she remain married to her husband? Is she exempt from any punishments? Is he also exempt from being penalized since he, too, was intoxicated?
ReplyDeleteDid you read the teshuva that R' Eidensohn posted? Did you look up the gemara in Eiruvin? Can you please stop asking the same questions over and over and over again?
ReplyDeleteThe Gemara states that one who is fully intoxicated is exempt from any and all court-imposed punishment. This applies to a man and a woman. I assume that Hashem would not be very pleased with one who acts in that manner, and על הכל אלוקים יביא במשפט. As for remaining married to her husband, see that teshuva, where he rules that she may.
The teshuva dealt with a different scenario.
ReplyDeleteI don't know what you mean by a "different scenario." The essential point as far as halacha is concerned is that only willing adultery renders the woman forbidden to her husband. Someone fully intoxicated is not capable of making any willing decision, as they have no da'as. Even if they went to the bar with that intent, who is to say that they would not have changed their minds at the last moment? Again, to be clear, I am not justifying such behavior on any level. I am just noting that in terms of court-imposed punishment, and, according to that teshuva, for a woman to become forbidden to her husband due to adultery, the act of intercourse must be engaged in by a ben-da'as, to the exclusion of one fully intoxicated.
ReplyDeletehttp://daattorah.blogspot.com/2015/07/a-woman-who-willingly-had-intercourse.html
ReplyDelete