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o States of affairs that we have decided we will not honor.
§ Also for these there sentences given by city, state or federal government.
o The standard treatise (perkins on criminal law) deals with blackmail asa form of statutory extortion. Statutory extortion is either
1. The unlawful extraction of money or other value by means of a threat not sufficient for robbery.2. A communication for the purposes of such extraction.
§ A threats to Expose Criminal wrongdoing
· The blackmailer has a duty to report crimes (contra Block and Gordon).
· His failure to do so is a public harm.
· So, the harm principle covers it.
§ Threats to reveal that the Victim has Engaged in, and Continues to Engage in perfectly legal but devious trickery or underhanded dealing.
· This is the only category that needs be legalized in order to preserve the overall coherence of the legal system.
· Here there seems to be a right, rather than a duty.
· "A sufficient reason for not imposing a legal duty… is that it is practically difficult to draw the line between the public spirited exposer and the officious intermeddler. " (p 83)
§ Threats to expose some innocent characteristic or activity that is objectively discreditable but would in fact damage the victim's reputation
· In some benighted Group if it were disclosed.
· Involves violation of privacy.
· Illegal, even if non-criminal
· Possible ground for a new civil action
§ Threats to expose past mistakes of a currently reformed person
· Possibly grounds for a new "malicious truth" offense
· Truths can be harmful, while falling short of defamation
§ Threats in Any of the Other Categories to Make Accusation that are known to be False.
· Likely to include elements of fraud, etc.· Clear violations of rights
§ The key to resolving the paradox is to determine just why blackmailers are given the liberty to do acts that they threaten. In general, we would not make such acts legally optional were it not for practical considerations having to do primarily with the costs and difficulties of enforcement, and 2) such considerations fail to pose a similar obstacle to the criminalization of the corresponding blackmail proposals. ( Pg 90)
· The Wolfenden Committee Report (1957) had recommended that all criminal regulation of homosexual relations between adult, competent, consenting individuals be discontinued and that prostitution no longer be criminal except as it involves a public nuisance (as, for example, in the activity of street solicitation).Foundation of report was based on Mill's On Liberty
· Society is justified in legislating against these forms in behavior in that they are immoral to the point that they threaten the existence of society by undercutting the moral order requisite to its preservation.
· Three questions need answering:
§ Ought there to be a public morality?
· Yes. We don’t want to be free agents from lord of the flies or Hobbs Leviathan. We think it’s the right thing.
§ If so, has it a right to use law to enforce it?
· Yeah it should. Law is our grand invention.
§ Of so, should this right apply to al cases, or just the some?
· Although these questions are controversial, they can be answered
§ There is and ought to be a public morality
· Argt. From social necessity of morality.
· Argt. From people of democratic rule
§ Law us a proper implement of moral enforcement
· Natural law argument: law and morality are linked
· Positive law argument: sexual immorality ought to be controlled as exploitation ( of human weakness)
§ Legislation is warranted when the limits of tolerance known to the reasonable man are violated
· Tolerence knows its limits when annoyance turns to disgust (at some point society says "we wont tolerate this"
· One empirical test: the sensibilities of the "man on the clapham Mnibus"
§ What about Privacy?
· As far as possible, privacy must be respected
· But, "private morality doesn't make sense it marks no clear domain."
· H.L. A. Hart on the Enforcement of Morals
· Devlin is wrong. His version of moralism over liberalism leads to unacceptable conclusions.
· Devlin accepts the "moderate thesis" according to which a shared morality is the necessary glue that holds society together.
§ On this view, private immoralities may be offenses against society as a whole because they weaken social bonds.
§ Morality is a "seamless web;" deviation in one area is likely to lead to deviation in another.
§ But, because a society is identical with its morality, a change in morality is tantamount to destruction of society.
§ Law may legitimately be used to prevent or punish such offenses.
· Devlin's position insists on the analogy between immorality and reason; but immorality is not analogous to treason. Instead, moral change can be analogized to peaceful constitutional change, a progressive, not a destructive act.
· There is no historical support for the claim that private immoralities lead to social disintegration.
· On these points, Devlin tries to make the utilitarian case; but he lacks the facts.
· There is no historical support for the "seamless web" claim
· The claim that moral change implies social destruction is absurd
· Sometimes, Devlin seems to espouse the extreme thesis that immoralities out to be legall punished simply because the enforcement of morality is a good in itself ( and not because it threatens social cohesion). But this view is even less defensible, especially today, in a society more tolerant that England in the heyday of strict moralism.
· Devlin's moralism leads to a regime of enforcement in which the harm that would have to be done to respond to perceived moral harm would be greater that the harm it is meant to control.· This debate will continue on with the most unresolved constitutional issue: privacy
· Thomson on Privacy
· Privacy is a muddled notion; there appears to be no special right of privacy over and above the various rights we have to protect property and persons. There certainly is no right to be left alone.
· (as always with JJT) Consider some lively, imaginative examples, see what out institutions tell us, and refine our original notion as our analysis of these challenging examples requires.
§ The marital spat (35)
· Passer by overhears
· Not violating rights
· Snoop trains an amplifier on the house
· This violates privacy
· Someone has taken the trouble to snoop or pry and those who have been violated have taken precautions to keep things private
§ The selfish ice-cream eater (36)
· A acts badly toward B
· This doesn’t mean that B has a right against A
§ The man with pornographic picture (26-37)
· We violate his right if we train our x-ray device on his wall safe
· He can in various ways waive the right
§ The left knee (39)
· There are also rights we have over our own persons
· I have a right that you not touch or look at my left knee
· This too turns out to be a special privacy right but is reducible to a positive right over the person.
· Conclusion§ Having a "right to privacy" doesn't explain out having any of the rights in the privacy right cluster: "instead it is because we have these rights that we have a right to privacy." (44)
§ Stalking statutes need to be revised to protect victims.
· Definition of Stalking:
§ “A person commits the offense of stalking, if, with the intent to harass, alarm, or annoy, or if the person knew or should have known of the risk thereof, he or she engages in a repeated course of conduct directed at a specific individual or his or her immediate family, that cause a reasonable person to suffer significant emotional distress, and that individual suffers emotional distress.”
· Remarkable Volume of Stalking
· All 50 states have laws criminalizing stalking; but less than 1/3 of these states have the first stalking offense as a felony.
· Legal Remedies of Stalking
· Restraining Order
· Often Ineffective
· Common Laws Tort Actions
· Invasion of Privacy
· Intention infliction of emotional distress
· State Statutes
o Varied in lots of ways
· Some require credible threat
· Some require prior contact
· Some provide for preventive detention
· Others don't
o Morin argues that there should be more uniformity.
· Proposal: A model stalking statute
o Needs to respect both needs for protection of victims and constitutional protections of defendant.
o Clauses that specify "credible threats" should be excluded.
o Statute must focus on intent of threat rather than on speech.
o "Reasonable Man" provisions should control
· Thus, "know or should have known" provisions are fair.
· Mentally disturbed persons are not held to the same standard.
· Psychological assessments are appropriate.
o Penalties need to be serious, not minor.
o Thesis: There is no basis for criminalizing suicide out of a sense of duty to oneself, to others or to God.
· Duty to Self
§ There is prima facie support for suicide when future life will be pain and miserable. There can be a life worse for death.
§ As with all animals, humans have "free disposal" of their own lives.
§ To say that human life is too important to dispose of is hubris: " The life of man is of no greater importance to the universe than that of an oyster." (p. 167)
§ If my life were not my own (to end or continue), it would be as wrong to put it at risk as to commit suicide.
· Duty to god
§ If suicide is a contravention of God's will, then so is deflecting a stone that is falling on one's head. (There is no knowing which means serve divinely ordained ends.)
· The argument from the impiety of acts contrary to what is "natural" gets us nowhere.
§ We inoculate for smallpox
§ WE TAKE MEDICINE
§ We build houses
§ We cultivate the soil
Which of these is natural? Which not? Who know what station god has given me?
· Duty to others§ I don't harm by retiring from life: I merely cease to do good.
a. Identifying Issue
i. He plead guilty to second degree murder because he didn’t want to plead guilty on charges of first degree murder. The issue is whether he can plead guilty but claim innocence.
b. Holdingi. Supreme Court overturned the appellate rulings. Justice White stated, “An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”
i. A state statute criminalizing sodomy need not violate the U.S. Constitution
b. The issue:
i. Hardwick brought suit to challenge the constitutionality of a statute (Georgia code ANN 16-6-2), which made sodomy, even between consenting, competent adults, a crime.
ii. His claim: As a practicing homosexual, he was placed in imminent danger of arrest.
c. Lower Courts
i. Trial court dismissed for failure to state a cause of action
ii. Appeals Court reversed
1. Basis: Hardwick's sexual practices are private
2. Therefore beyond the reach of state law
3. Constitutional guarantees of privacy are to be found in the 9th and 14th amendments.
d. Supreme Court Majority: Justice White
i. As Justice White characterizes the case, it presents the issue of whether there is a right enjoyed by homosexuals to engage in sodomy
ii. State has prerogative to have its own legislative decisions, provided they don’t clash with the constitution.
iii. Nothing in the constitution bars such a law
iv. Morality is the basis of law
v. R.A.A. (argument is reductio ad absurdum) "If all laws representing essentially moral choices are to be invalidated under the due process clause, the courts will be very busy indeed."
1. Logical Fallacy
vi. Right is different from an interest. Fundamental rights are those implicit in liberty.
vii. Sex isn't a fundamental right. Can't be upheld by the 14th right. Try to use the 9th.
viii. The rights alleged are not fundamental rights guaranteed by the 14th amendment
1. "Fundamental liberties implicit in the concept of ordered liberty"
2. Liberties "deeply rooted in our nation’s history”
ix. Dissent: (Blackmun)
1. Case isn’t about a right to commit homosexual sodomy; its about the right to be left alone2. The historical argument is empty: "It is revolting to have no better reason for a rule of law that that is was laid down in the time of Henry IV"
a. Here Lawrence was arrested. He was caught having sex with another man which was against Texas statute
i. The due Process clause of the 14th amendment makes such a statute unconstitutional.
i. Defendants were convinced under a Texas statute providing that "a person commits an offense if he engages in deviant sexual intercourse with another individual of the same sex." they appealed
i. Liberty as protected by the constitution presume personal autonomy
ii. The court has found this protection of privacy in intimacy (Griswald v. Conn.)
iii. The court has also found that this personal autonomy doesn’t have a right to engage in Sodomy. (Bowers v. Hardwich)
iv. This seems to involve a contradiction, or at least a serious tension between rights granted.
v. Both the Texas and Georgia statutes aim to control personal relationships that are "within the liberty of persons to choose without being punished as criminals"
vi. Criminalization is inappropriate if no harm is proven
vii. Early sodomy laws were aimed at non procreative sex, not homosexual relations.
viii. States criminalizing same-sex relations are recent and it’s an abolishing trend,
ix. Bowers v. Hardwick was wrongly decided and now overruled.
i. No basis for finding a right to homosexual sodomy in the Due Process Clause, which prohibits states from infringing fundamental liberty interests (which this conduct is not).
ii. The Court's reliance on trends of popular approval is suspect: the same reliance could overturn Roe v. Wade
iii. A majority's belief that a certain sexual behavior is immoral and unacceptable is a rational basis for its regulation.
iv. If the majority rationale is accepted, laws against bigamy, adult incest, bestiality, etc, would be invalidated. R.a.av. The issue should be left to the states. That's where issues of a prohibition and disapprobation of conflict are rightly sorted out.
i. Whether the state of Missouri had the right to require clear and convincing evidence in order to pull their daughter’s life support.
1. The United States Constitution does not forbid Missouri to require that evidence of an incompetent's wishes as to the withdrawal of life-sustaining treatment be proved by clear and convincing evidence. Pp. 269-285. [497 U.S. 261, 262]
2. The State Supreme Court did not commit constitutional error in concluding that the evidence adduced at trial did not amount to clear and convincing proof of Cruzan's desire to have hydration and nutrition withdrawn. The trial court had not adopted a clear and convincing evidence standard, and Cruzan's observations that she did not want to live life as a "vegetable" did not deal in terms with withdrawal of medical treatment or of hydration and nutrition.
3. The Due Process Clause does not require a State to accept the "substituted judgment" of close family members in the absence of substantial proof that their views reflect the patient's. This Court's decision upholding a State's favored treatment of traditional family relationships, Michael H. v. Gerald D., 491 U.S. 110 , may not be turned into a constitutional requirement that a State must recognize the primacy of these relationships in a situation like this. Nor may a decision upholding a State's right to permit family decision making, Parham v. J.R., 442 U.S. 584 , be turned into a constitutional requirement that the State recognize such decision making.C. Majority written Rehnquist
o 381 U.S. 479 (1965)
o Law about contraceptive devices. Nothing heard about them and they couldn’t be sold.
o Griswold planned parenthood employee
o A Connecticut law criminalizing the use of contraceptives violated the right to marital privacy. Connecticut Supreme Court reversed.
o Held on 9th and 14th Amendment
o Distinction between an agent's purpose in action and the agent's knowledge of the foreseeable consequences of his action.
o According DDE, an action that has at least consequences, good and bad is morally permissible if and only if
· The action itself is not inherently morally wrong
· The agent intends in performing the action to bring about the good consequence, but merely for sees that the bad consequence might occur.
· The only way to bring about good consequences is to perform this action; if one could bring about the good consequence without performing this action, one would be morally obligated to do so;· The good consequence occurs before, or at least at the same time as, the bad consequence.
· No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
· The standard treatise (perkins on criminal law) deals with black mail, as a form of statutory extortion. Statutory extortion is either
o Unlawful extraction of money or other value by means of a threat not sufficient for robbery.o A communication for the purposes of such extraction.
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