Legislature passes law mandating jail time for sexual assault of a person who is unconscious or too intoxicated to consent

CNN

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. [...]

Court voids state sex offender registry for imposing unconstitutionally retroactive punishment

Washington Post

Today the U.S. Court of Appeals for the 6th Circuit held that recent amendments to Michigan’s Sex Offender Registration Act (SORA) are unconstitutional because they impose retroactive punishment on sex offenders in violation of the Constitution’s prohibition on ex post facto laws. Among other things, the plaintiffs argued that amendments to Michigan’s SORA increased the severity of its requirements after their convictions imposed retroactive punishment. In John Does #1-5 v. Snyder, the Sixth Circuit agreed.

Judge Alice M. Batchelder wrote for the court, joined by Judges Gilbert S. Merritt and Bernice B. Donald. Her opinion for the court begins.

Like many states, Michigan has amended its Sex Offender Registration Act (SORA) on a number of occasions in recent years for the professed purpose of making Michigan communities safer and aiding law enforcement in the task of bringing recidivists to justice. Thus, what began in 1994 as a non-public registry maintained solely for law enforcement use . . . has grown into a byzantine code governing in minute detail the lives of the state’s sex offenders . . . Over the first decade or so of SORA’s existence, most of the changes centered on the role played by the registry itself. In 1999, for example, the legislature added the requirement that sex offenders register in person (either quarterly or annually, depending on the offense) and made the registry available online, providing the public with a list of all registered sex offenders’ names, addresses, biometric data, and, since 2004, photographs. . . . Michigan began taking a more aggressive tack in 2006, however, when it amended SORA to prohibit registrants (with a few exceptions . . .) from living, working, or “loitering”1 within 1,000 feet of a school. . . . In 2011, the legislature added the requirement that registrants be divided into three tiers, which ostensibly correlate to current dangerousness, but which are based, not on individual assessments, but solely on the crime of conviction. . . . The 2011 amendments also require all registrants to appear in person “immediately” to update information such as new vehicles or “internet identifiers” (e.g., a new email account). . . . Violations carry heavy criminal penalties.

The Plaintiffs in this case—identified here only as five “John Does” and one “Mary Doe”—are registered “Tier III” sex offenders currently residing in Michigan. It is undisputed on appeal that SORA’s 2006 and 2011 amendments apply to them retroactively. That law has had a significant impact on each of them that reaches far beyond the stigma of simply being identified as a sex offender on a public registry. As a result of the school zone restrictions, for example, many of the Plaintiffs have had trouble finding a home in which they can legally live or a job where they can legally work. These restrictions have also kept those Plaintiffs who have children (or grandchildren) from watching them participate in school plays or on school sports teams, and they have kept Plaintiffs from visiting public playgrounds with their children for fear of “loitering.” Plaintiffs are also subject to the frequent inconvenience of reporting to law enforcement in person whenever they change residences, change employment, enroll (or unenroll) as a student, change their name, register a new email address or other “internet identifier,” wish to travel for more than seven days, or buy or begin to use a vehicle (or cease to own or use a vehicle).

After an extensive analysis that explains why the SORA amendments are punitive and, therefore, qualify as retroactive punishment, Judge Batchelder concludes:

A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law. SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

We conclude that Michigan’s SORA imposes punishment. And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased. Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core countermajoritarian principle embodied in the Ex Post Facto clause. As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice. Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument[] of tyranny.” The Federalist No. 84, supra at 444 (Alexander Hamilton). It is, as Justice Chase argued, incompatible with both the words of the Constitution and the underlying first principles of “our free republican governments.” Calder, 3 U.S. at 388–89; accord The Federalist No. 44, supra at 232 (James Madison) (“[E]x post facto laws . . . are contrary to the first principles of the social compact, and to every principle of sound legislation.”). The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.

Kaminetsky:Greenblatt Heter: The Horse and the Rider - Chazal talk about the fraudulent denial of liability for sins

Guest Post by Joe Orlow. 

Joe Orlow is to be commended for his devotion to the cause of seeking the truth of the Torah and exposing Lies. Remaining silent "for the kavod of gedolim" - is just causing the internal rot of our souls - because we all know the truth and we are required to protest. Pretending that Tamar and Adam are not committing adultery because the "gedolim" gave a false heter - doesn't change reality.

=======================================

The crux of the matter is how Halacha is decided. In this case, the Halacha was "Pore'ach Min Ha'Avir", it sprouted out of thin air. We find this decision making process at the crossing of the Red Sea. The horse claimed: "I did nothing wrong. I relied on the driver who gave me directions." The driver claimed: "I did nothing wrong. The horse galloped on its own into battle. I was dragged along into chasing Bnai Yisrael."

What happens, according to the Medrash? The driver is put on the horse and together they are both tossed into the sea.

Rabbi Shmuel Kamenetsky told me that if I want, I can rely on Rabbi Nota Greenblatt in regard to the Heter for Tamar Epstein to marry Adam without a Get from her husband Aharon Friedman. Rabbi Greenblatt says he performed the marriage of Tamar to Adam by relying on the Gadolim, an apparent reference to Rabbi Shmuel Kamenetsky. There you have it: "Sus V'Rachvo".

The effect of all this is to corrode the Kedusha of the Jewish Nation. And it leads to absurdities. Rabbi Hillel David told me that he sat on the Feinstein Bais Din and that the Bais Din ruled that Tamar is married to Aharon. Are Tamar's future progeny to be Mamzer in Manhattan but not in Memphis?

Worse than this is that some young Torah Scholars in America are becoming jaded. They think -- consciously or not -- that the Agudath Israel is a corrupt organization. The Moetzes Gadolai Hatorah is corrupt. Their attitude becomes: "Ah! But what can you do?"

What can you do? You can shriek from the rooftops! The Jewish People may be splitting into two Nations that can't marry into each other. We'll survive. But can we survive with a Rabbinate that is cynical and steeped in hopelessness?

The outrage against the Avlah of the Feinstein Bais Din is pent up, but I'm told from a reliable source that the outrage is there. I say that when outrage is repressed, the capacity to become outraged becomes blunted and stunted.

If we don't stand up and protest now, the situation will only deteriorate until we are left barren without anyone who will even listen to our cries.

Ekev 76 - What you resist, persists - the case for positive education

Guest Post by Allan Katz

In our parasha, Moses continues to encourage the nation to trust in God to ensure the successful conquest and settlement of the land. In order to help the nation build trust in God and see God as the source of their success and power, Moses describes God's care and providence. God protected them from the hardships of the desert,' HE fed you the manna, your garment did not wear out upon you and your feet did not swell' – ויאכילך את המן, שמלתך לא בלתה ורגלך לא בצקה . Moses reminds them that the goodness comes with challenges and hardships in order to prepare them for life in the land of Israel. In order to survive in Israel, one needs a high level of faith and trust in God and life in the desert למען ענתך לנסותך, ויענך וירעבך ויאכילך את המן, כאשר ייסר איש את בנו - living a life dependent on miracles, not being able to store food for the next day and or do anything that will give life some certainty and predictability, prepared them for life in Israel. They should know that this path was for their benefit. Moses then warns about the dangers that prosperity brings – arrogance, self- aggrandizement and self- glorification. This leads to forgetting God and saying ' it is my strength and the might of my hand that made me all this wealth'. Ultimately this leads to idolatry, going after the gods of others.

כֹּחִי וְעֹצֶם יָדִי, עָשָׂה לִי אֶת-הַחַיִל הַזֶּה. וְהָיָה, אִם-שָׁכֹחַ תִּשְׁכַּח אֶת-יְהוָה אֱלֹהֶיךָ, וְהָלַכְתָּ אַחֲרֵי אֱלֹהִים אֲחֵרִים

The first question is that on entry into the land of Israel, the children of Israel are commanded to destroy all manifestations and vestiges of idolatry as it would be unbefitting that idolatry should exist in God's palace, the land of Israel. So why is Moses so concerned about idolatry, if the land has been cleaned out of any temptations and enticement? The 2nd question – prosperity allows people to be independent rather than dependent on God and so people attribute their success to their own efforts and beings, rather than God's support, so why would people then subjugate themselves and submit to idols. ? R' Isaac Sher gives 2 answers. At a time when there existed a passion for idolatry, people had the power to use these negative forces of idolatry to improve their materialistic situations. The second answer - when a man attributes all his success to his own doing, he is denying God's role and he begins to worship himself. A person who is rude and coarse, gets angry – thinks he is a god and people have to listen to him. A person who is arrogant and self-glorifies himself is involved in idolatry = uvoda zara. An atheist or non-believer, even though he does not believe in anything but himself is also an idolater. When one puts his trust in others and flatters people with power - החונף he is considered worse than an idolater. A person who is an idolater's slave is considered as if he serves idolatry. The verse in Judges 10: 6 gives a list of gods of the surrounding nations that the children of Israel worshipped and served. ויעבדו את הבעלים ואת העשתרות ואת אלהי ארם ואת אלהי צידון ואת אלהי מואב ואת אלהי בני עמון ואת אלהי פלשתיםThe Midrash connects this idolatry to the children of Israel's laziness and lack of effort in prayer. R' Isaac Sher explains that when people do not tire from activities that serve their interests but are tired when it comes to prayer, it means that the nation places more value and trust in political agreements and alliances with the surrounding nations than prayer, and that people have more faith in their efforts than in prayer. When this happens – it is as if the nation serves the gods of these nations and people who cheapen prayer do the same.

Although there is a commandment to clear out and destroy idols and manifestations of idolatry, the thrust of Moses' speech is positive, focusing on building trust and relationship with God. If you have a problem with idolatry, the underlying problem is your relationship with God. The problem is mainly within man and not outside of him, so we focus on building personalities rather than engineering the environment so there is not temptation or enticement.

A similar problem - a man is overcome with lustful thoughts when he is certain environments. The Talmid= student of R' Chaim Volozhin, the Keter Rosh wrote down the teachings of his mentor. He writes about a man, (most likely unmarried) who had a problem with impure thoughts when he sees women. In order to deal with his problem and fight his lustful thoughts he decides to make a vow not to look at women. If he breaks his vow and looks at a woman, his desire will burn inside him like a fire. The situation is much worse, since he fought reality and energized the negative action he was fighting. Instead, he should accept the reality and pray for God's assistance and mercy in dealing with the challenges as he ventures into the market place. He is not told to avoid the market place. R' Moshe Feinstein said– if a person is challenged by public transport he should know he has a problem and work on himself.

כתר ראש ארחות חיים קצה ] הסתכלות עריות ושיחתן אמר זה הכלל כל מה שינדור א״ע ויפרוש מראיה אח״כ אם יראה ויביט יבער בו היצר כאש, אלא כשדעתו לילך בשוק יתפלל ויבקש רחמים לבל יכשל ח׳יו בשום נדנוד חטא והרהור עבירה ר׳ל;

כתר ראש - הנהגותיו שנכתבו בידי תלמידו של ר, חיים מולוזהין רבי אשר הכהן משערשוב.

When we are dealing with children we need to give them structure and make the environment safe and protect them from e.g. bad diet – sugar and the media. The solution for adults – engineering the environment beyond the demands of Halacha – Jewish Law so that the environment will be free of any temptation or challenges has many downsides. The focus is no longer on positive education and building righteous people who can overcome challenges, but on creating a sterile environment and fighting the external threats to a person's spirituality. There is another problem – when you fight ' evil', you actually support and strengthen ' evil' as Carl Jung said - 'what you resist persists'. The answer is to accept reality and not to fight reality and then focus on positive steps and education which will help you change reality. ' 'What you resist , persists' - means that if a person has a character flaw – lustful thoughts , or he has an anger problem or he has food or drink problems, the more the person fights the reality, the bigger the problem becomes. He has ' energized the problem and given it center stage in his life. Instead of going away, it fights back and persists. If a man has bad thoughts, he can use the principles of Mindfulness – acknowledge his thoughts, put them aside and then focus on his breathing and then something else. If he tries to resist these thoughts, they fight back and persist. He should be building his personality so his mind is occupied with ideas or being mindful of what he is doing so he is not distracted. He should try to see the image of God – צלם אלוקים in each person and relate to their contribution to society instead of focusing on their gender. If he breaks his diet , resists and fights back by being over-critical of himself, full of shame , he will ultimately give up , and say ' what the hell and then he will go on the binge – eating and drinking without any restraints. So a person with a drink or diet problem , needs a plan that will focus on what he can eat , replacement foods , a new life style instead of focusing of what he should not eat. When he does fail and breaks his diet, he should have some self- compassion instead of being over- critical and giving energy to breaking his diet and focus on getting back on track. Campaigns against 'talking in shul ' will be more successful if they focus on positive education and not ' energizing' talking in shul. Campaigns about the dangers of internet and cell phones tend to cause people to shift blame from people and their relationships or exploring underlying problems and just blame it all on the internet. People forget that the most potent and dangerous communication tool is our tongues and not the cell phone or the internet. Here too, we need to focus on the positive, what we can talk about and connect with people in a positive way. Even if a person makes a conservative and restricted choice concerning the media, he has to remember the downside of resisting and energizing the dangers - the negative side and focus on positive education. In politics, candidates in election who focus on the negative of their opponents rather than saying something positive about themselves, strengthen their opponents. The campaign to remain in the European Community failed because it focused on negative consequences of leaving rather than the positive reasons for staying in the community. Instead of giving a list of what pupils cannot do in the holidays, a teacher should focus on what they could do.

There is tendency in education to try and control the environment and people's choices rather focus on positive education and build people. When the focus is on fighting the negative, we need to understand the downside – 'what we resist persists.'.

The aging paradox: The older we get, the happier we are

LA Times

Believe it or not, there are upsides to getting older.

Yes, your physical health is likely to decline as you age. And unfortunately, your cognitive abilities like learning new skills and remembering things is likely to suffer too.

But despite such downsides, research suggests that your overall mental health, including your mood, your sense of well-being and your ability to handle stress, just keeps improving right up until the very end of life.

Consider it something to look forward to.

In a recent survey of more than 1,500 San Diego residents aged 21 to 99, researchers report that people in their 20s were the most stressed out and depressed, while those in their 90s were the most content.

There were no dips in well-being in midlife, and no tapering off of well-being at the end of life.

Instead scientists found a clear, linear relationship between age and mental health: The older people were, the happier they felt.

The results were published Wednesday in the Journal of Clinical Psychology.

Experts on the psychology of aging say the new findings add to a growing body of research that suggests there are emotional benefits to getting older.

“In the literature it’s called the paradox of aging,” said Laura Carstensen, director of the Stanford Center on Longevity, who was not involved in the work. “How can it be that given the many well-documented losses that occur with age, we also see this improvement in emotional well-being?”

As it happens, Carstensen does not think this is a paradox at all.

In her own work, she has found evidence that people’s goals and reasoning change as they come to appreciate their mortality and recognize that their time on Earth is finite.

“When people face endings they tend to shift from goals about exploration and expanding horizons to ones about savoring relationships and focusing on meaningful activities,” she said. “When you focus on emotionally meaningful goals, life gets better, you feel better, and the negative emotions become less frequent and more fleeting when they occur.”

The authors of the new work also suggest that improved mental health in old age could be due to the wisdom people acquire as they grow older. [...]

Water covers the "ervah" of the sea as Torah covers the "ervah" of Israel. What does the word "ervah" mean?

The voice of a woman is ervah.  Uncovering a tefach is called ervah. Ervah can also indicate a prohibited sexual relationship. The commonality is that it is something sexually arousing. 

I am having trouble understanding the use of ervah in this quote from Shir HaShirim Rabbah. Does it simply mean that which is normally covered without any connotation of sexuality? A similar use is found in divorce. A man can divorce his wife if he finds ervas davar? That means he finds something about her which is irritating or problematic. Not necessarily related to sexuality.

What is this medrash saying?

Shir HaShirim  Rabba[1](1:19): Just as water covers the nakedness (ervah) of the sea as it says, As the waters cover the sea (Yeshaya 11:9), so the Torah covers the nakedness (ervah) of Israel, as it says, Love covers all transgressions (Mishlei 10:12).

---

[1] שיר השירים רבה (א:ג):  ומה מים מכסים ערותו של ים שנא' (ישעיה יא:ט) כמים לים מכסה כך תורה מכסים ערותן של ישראל שנאמר (משלי י:יב) ועל כל פשעים תכסה אהבה,

Mendel Epstein:Jay Goldstein's appeal August 2016

  Jay Goldstein Appeal August 2016

Dr. Joy Silberg (a recognized expert on abuse): Public statement in regards to the issue of child abuse in Jerusalem

I would never condemn people who are trying to protect children.

“Before the truth is known about any unusual phenomenon, there are many theories offered, some closer to the actual truth than others. Denying the existence of the unusual phenomenon is one approach.(Some people argue about the origin of the universe, but no one asserts, therefore there is no universe!) Giving the phenomenon formally discredited names is one approach —often called a “straw man” argument.This is usually not the best approach The best approach is a methodical collection of relevant information, careful attention to detail, weighing the various explanations with an attention to the data and generating the hypothesis that most closely approximates what is being seen. What is being seen is the abuse of children with concerning symptoms. The public should proceed with caution with the awareness that there is more severe abuse in Jerusalem than one would generally expect, listen to the children, get guidance from professionals, trust credentialed authorities, cooperate with professional investigators, listen to the wisdom of Rabbinic leaders that you trust, keep an open mind, while protecting children. I have met no one with bad intentions, but a community problem like this often creates divisiveness. I am against divisiveness in the Jewish community. I believe that Klal Yisrael should work together during crises.” Joyanna Silberg, PH. D.

This is my statement. I don’t intend to answer further questions. I hope the above summarizes my overall view. I wish success to the Israeli public in solving these difficult issues. Please don’t edit it.

“Joyanna Silberg, Ph. D."

Pew Poll: Voters choose candidates out of hatred for the other

Arutz 7

A new poll put out by the Pew Research Center this morning shows Trump and Clinton neck and neck in the race to determine the next US president.

According to the poll, Clinton leads among respondents at 41%, with Trump trailing close behind at 37%.

The poll also shows that neither candidate is wildly popular among respondents. According to the poll, 53% of Trump supporters say their vote is more against Clinton than for Trump, while 46% of Clinton supporters say their vote is more against Trump than for Clinton.[...]

No bail for fugitive rabbi Eliezar Berland caught admitting to rape, plotting murder

Times of Israel

The Jerusalem Magistrate Court on Thursday ordered that a recently repatriated fugitive rabbi, who was caught on video apparently admitting to raping a woman and plotting murder, will remain in police custody until the legal proceedings against him are over.

After spending three years on the run, Rabbi Eliezer Berland was extradited from South Africa to Israel where he was arrested last month and charged with several counts of sexual assault.

At the Thursday hearing, the court said Berland posed a flight risk, and expressed concern the 79-year-old rabbi might attempt to evade or obstruct justice.[...]

Days after his July 19 return and subsequent arrest in Israel, Channel 2 aired footage of Berland from 2012 in which he admitted to raping one of his female followers.

“She was raped from start to finish,” Berland can be heard saying in the footage. “Afterwards she thought it was permissible… the first time I raped her.”

According to the TV channel, the incriminating recordings were made four years ago by two of Berland’s followers. They were told to burn all the tapes and other potentially incriminating material “in case the police do not cooperate.”

But some of the tapes survived, and were handed over to police last month. In another tape, Berland can be heard instructing one of his followers to place a bomb under the bed of an unnamed person — to send them to heaven.

Earlier this week, Channel 2 aired more incriminating footage of the rabbi, in which he admits to ordering a string of arson attacks almost two decades ago. In the video believed to be recorded five years ago, Berland proudly says he sent his son to torch bus stops all over Israel to protest the “immodestly” dressed women featured in ads.

Berland has denied all of the allegations against him, and in interviews, his attorneys have claimed the voice on the recordings is not Berland’s. [...]

Va'eschanan; Hashem Does Not Use Words Randomly by Rabbi Shlomo Pollak

Guest post by Rabbi Shlomo Pollak

When Hakadosh Baruch Hu tells Moshe Rabbeinu to go up and look out over to Eretz Yisroel, the order of the directions he is instructed to look at seems very random...

First west, then up north...then south, and finally east??

Where do we find such an order? And why was this used here??

For questions and comments please email us salmahshleima@gmail.com 

https://youtu.be/a4Gnqdp-iXQ

Ben Ish Chai: Does a wife have to listen to her husband if he orders her to bray like a donkey?

Ben Ish Chai (Torah Lishma 319): Question: Is a wife obligated to listen to her husband when he orders her to do ridiculous things? For example, does she have to listen when her husband demands with threats that she should ride on a broomstick in the courtyard like little children do or to bray like a donkey or bark like dog? She refused because of embarrassment. Does she in fact have an obligation to listen to her husband even for foolish things because a woman is obligated to honor her husband and to do what he wants because that is his happiness? Or do we say that she has no obligation to listen to foolish demands? Answer: She is not required to listen to him when he says foolish things. It says in Kesubos (71b) that if a man takes an oath that his wife must fill up a bucket 10 times with water and empty it in the garbage dump – he is required to divorce her and give her the kesuba because doing so makes her look like she is crazy. So also in our case. Doing these foolish things makes her look like she is crazy and she is not obligated to listen to him in these things.

Forgiveness, Acceptance 25 Years After Crown Heights Riots

NBC News

Twenty-five years ago, riots erupted in Crown Heights after Jewish driver accidentally hit and killed Gavin Cato, a 7-year-old African American child. Jewish scholar Yankel Rosenbaum was stabbed by black teens in retaliation. Today, the families of Cato and Rosenbaum continue to meet and set an example of forgiveness and acceptance.

Poster warning against rings that capture and abuse chareidi children in Jerusalem and other places - and undermine their Yiddishkeit