A horror show in the making...

I just wrote a ten page brief in 24 hours. It is complete crap and I hope no one ever reads it.

But unfortunately, not only will my instructor read it, I will eventually be defending it in front of a panel of judges as well as an audience of my peers.

This brief is for the annual Moot Court competition and each student is supposed to defend their brief during 30 minutes of oral arguments in which a panel of judges ask you tough questions about it.

I should revise my brief so as not to embarass myself too badly...but then I'm also unwilling to put in the time. It's like a battle of the vices: vanity v. slothfulness...which one will win out?

The Comparison Effect

Used car salesmen understand the Comparison Effect very well.


When you step foot in their lot, they will usually begin by directing you to a junky car with a steep price. They expect you to be disgusted and think, "No way I'd ever buy that." But car #1 is not meant to entice you to purchase, it's just a decoy to set up car #2. The dealer will then show you a pretty nice car with the same or lower price than the first and you think, "Wow, that's a really good deal! I'll take it!"

That, my friends, is the Comparison Effect.

Though this phenomenon is mostly intuitive, it hasn't stopped sociologists from doing some pretty fun experiments on it. One in particular involved having college guys rate how attractive their blind dates were, depending on whether they watched Charlie's Angels immediately before their date or not. And the results?

You guessed it. Those who watched Charlie's Angels right before their dates rated their dates far lower than those guys who did not watch the show.

I say all this by way of introduction. For a long time now, I've been feeling the adverse effects of the Comparison Effect. Ever since starting law school, I've been feeling worse about myself than I have ever felt before.

Never have I been so completely surrounded by such brilliant, articulate, and accomplished people. I feel like turd next to them.

It's ironic because most people warned me about getting a "big head" because I got into a fancy schmance law school. They worried that I, their laid-back, under-achieving couch potato, would morph into a shrill and pompous academic. But quite the opposite happened. More than any other time in my life I feel like a second-class citizen...an inferior being.

It's been humbling to feel like a dwarf among giants. But I have to admit the "giants" have all been very friendly and I have benefited from standing on their shoulders to see more than I ever could have otherwise.

Legal Smut (Don't read this one Mommy)

In response to my brother's comment:

"Alright I don't get it. If the girl is alive and conscious, and neither speaks nor motions for the guy to stop whatever he is doing, how can anything that he does be rape? Quite possibly what the guy is doing is against the girl's will, but if there is no proof of that, how is the law to decide? Is the jury going to look at the guy and say, Nooo way, no one would ever voluntarily have sex with that guy. How about you post a specific fact pattern for me to gape at?"

Here is a real, live, case in point. I lifted this straight out of LexisNexis so there are tons of funny little numbers and symbols in randomn spots (just ignore them).

I never thought I would be posting this kind of smut on my blog...much less for my brother's benefit in particular...but life is just that unpredictable.

Enjoy(?) brother (that's probably not an appropriate thing to say here...)

(For those of you with shorter attention spans than my brother, just reading the overview should give you the gist.)

State in the Interest of M.T.S.
(New Jersey Supreme Court 1992)
OVERVIEW: The trial court determined that defendant juvenile was delinquent for committing a sexual assault. The trial court's decision was based on evidence that defendant and a fifteen-year-old girl engaged in consensual kissing, heavy petting, and thereafter in actual sexual penetration of the girl to which she had not consented, though she did not scream or cry out. The appellate court reversed, concluding that the nonconsensual penetration did not constitute sexual assault because it was not accompanied by some level of force more than that necessary to accomplish the penetration. The court reversed and reinstated the disposition of juvenile delinquency. The court held that any act of sexual penetration engaged in by defendant without the affirmative and freely given permission of the victim to the specific act of penetration constituted the offense of sexual assault. The court held that permission could be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances. The court found that the record reasonably supported the trial court's conclusion that the victim had not expressed consent to the act of intercourse, either through her words or actions.

Opinion of the court delivered by Judge Handler:

Under New Jersey law a person who commits an act of sexual penetration using physical force or coercion is guilty of second-degree sexual assault. The sexual assault statute does not define the words "physical force." The question posed by [*425] [***2] this appeal is whether the element of "physical force" is met simply by an act of non-consensual penetration involving no more force than necessary to accomplish that result.

That issue is presented in the context of what is often referred to as "acquaintance rape." The record in the case discloses that the juvenile, a seventeen-year-old boy, engaged in consensual kissing and heavy petting with a fifteen-year-old girl and thereafter engaged in actual sexual penetration of the girl to which she had not consented. There was no evidence or suggestion that the juvenile used any unusual or extra force or threats to accomplish the act of penetration.

The trial court determined that the juvenile was delinquent for committing a sexual assault. The Appellate Division reversed the disposition of delinquency, concluding that non-consensual penetration does not constitute sexual assault unless it is accompanied by some level of force more than that necessary to accomplish the penetration. 247 N.J.Super. 254, 588 A.2d 1282 (1991). We granted the State's petition for certification. 126 N.J. 341, 598 A.2d 897 (1991). [***3]

I

The issues in this case are perplexing and controversial. We must explain the role of force in the contemporary crime of sexual assault and then define its essential features. We then must consider what evidence is probative to establish the commission of a sexual assault. The factual circumstances of this case expose the complexity and sensitivity of those issues and underscore the analytic difficulty of those seemingly-straight-forward legal questions.

On Monday, May 21, 1990, fifteen-year-old C.G. was living with her mother, her three siblings, and several other people, including M.T.S. and his girlfriend. A total of ten people resided in the three-bedroom town-home at the time of the incident. M.T.S., then age seventeen, was temporarily residing at the home with the permission of the C.G.'s mother; he slept [*426] downstairs on a couch. C.G. had her own room on the second floor. At approximately 11:30 p.m. on May 21, C.G. went upstairs to sleep after having watched television with her mother, M.T.S., and his girlfriend. When C.G. went to bed, she was wearing underpants, a bra, shorts, and a shirt. At trial, C.G. and M.T.S. offered very different accounts concerning [***4] the nature of their relationship and the events that occurred after C.G. had gone upstairs. The trial [**1268] court did not credit fully either teenager's testimony.

C.G. stated that earlier in the day, M.T.S. had told her three or four times that he "was going to make a surprise visit up in [her] bedroom." She said that she had not taken M.T.S. seriously and considered his comments a joke because he frequently teased her. She testified that M.T.S. had attempted to kiss her on numerous other occasions and at least once had attempted to put his hands inside of her pants, but that she had rejected all of his previous advances.

C.G. testified that on May 22, at approximately 1:30 a.m., she awoke to use the bathroom. As she was getting out of bed, she said, she saw M.T.S., fully clothed, standing in her doorway. According to C.G., M.T.S. then said that "he was going to tease [her] a little bit." C.G. testified that she "didn't think anything of it"; she walked past him, used the bathroom, and then returned to bed, falling into a "heavy" sleep within fifteen minutes. The next event C.G. claimed to recall of that morning was waking up with M.T.S. on top of her, her underpants and shorts removed. [***5] She said "his penis was into [her] vagina." As soon as C.G. realized what had happened, she said, she immediately slapped M.T.S. once in the face, then "told him to get off [her], and get out." She did not scream or cry out. She testified that M.T.S. complied in less than one minute after being struck; according to C.G., "he jumped right off of [her]." She said she did not know how long M.T.S. had been inside of her before she awoke.

[*427] C.G. said that after M.T.S. left the room, she "fell asleep crying" because "[she] couldn't believe that he did what he did to [her]." She explained that she did not immediately tell her mother or anyone else in the house of the events of that morning because she was "scared and in shock." According to C.G., M.T.S. engaged in intercourse with her "without [her] wanting it or telling him to come up [to her bedroom]." By her own account, C.G. was not otherwise harmed by M.T.S.

At about 7:00 a.m., C.G. went downstairs and told her mother about her encounter with M.T.S. earlier in the morning and said that they would have to "get [him] out of the house." While M.T.S. was out on an errand, C.G.'s mother gathered his clothes and put them outside [***6] in his car; when he returned, he was told that "[he] better not even get near the house." C.G. and her mother then filed a complaint with the police.

According to M.T.S., he and C.G. had been good friends for a long time, and their relationship "kept leading on to more and more." He had been living at C.G.'s home for about five days before the incident occurred; he testified that during the three days preceding the incident they had been "kissing and necking" and had discussed having sexual intercourse. The first time M.T.S. kissed C.G., he said, she "didn't want him to, but she did after that." He said C.G. repeatedly had encouraged him to "make a surprise visit up in her room."

M.T.S. testified that at exactly 1:15 a.m. on May 22, he entered C.G.'s bedroom as she was walking to the bathroom. He said C.G. soon returned from the bathroom, and the two began "kissing and all," eventually moving to the bed. Once they were in bed, he said, they undressed each other and continued to kiss and touch for about five minutes. M.T.S. and C.G. proceeded to engage in sexual intercourse. According to M.T.S., who was on top of C.G., he "stuck it in" and "did it [thrust] three times, and then [***7] the fourth time [he] stuck it in, that's when [she] pulled [him] off of her." M.T.S. said that as [*428] C.G. pushed him off, she said "stop, get off," and he "hopped off right away."

According to M.T.S., after about one minute, he asked C.G. what was wrong; she replied with a back-hand to his face. He recalled asking C.G. what was wrong a second time, and her replying, "how can you take advantage of me or something like that." M.T.S. said that he proceeded to get dressed and told C.G. to calm down, but that she then told him to get away from her and began to cry. Before leaving the room, he told C.G., "I'm leaving . . . I'm going with my real girlfriend, don't talk to me . . . I don't want nothing to do with you or anything, stay out of my life . . . don't [**1269] tell anybody about this . . . it would just screw everything up." He then walked downstairs and went to sleep.

On May 23, 1990, M.T.S. was charged with conduct that if engaged in by an adult would constitute second-degree sexual assault of the victim, contrary to N.J.S.A. 2C:14-2c(1). In addition, he faced unrelated charges for third-degree theft of movable property, contrary to N.J.S.A. 2C:20-3a, third-degree escape, [***8] contrary to N.J.S.A. 2C:29-5, and fourth-degree criminal trespass, contrary to N.J.S.A. 2C:18-3.

Following a two-day trial on the sexual assault charge, M.T.S. was adjudicated delinquent. After reviewing the testimony, the court concluded that the victim had consented to a session of kissing and heavy petting with M.T.S. The trial court did not find that C.G. had been sleeping at the time of penetration, but nevertheless found that she had not consented to the actual sexual act. Accordingly, the court concluded that the State had proven second-degree sexual assault beyond a reasonable doubt. On appeal, following the imposition of suspended sentences on the sexual assault and the other remaining charges, the Appellate Division determined that the absence of force beyond that involved in the act of sexual penetration precluded a finding of second-degree sexual assault. It therefore reversed [*429] the juvenile's adjudication of delinquency for that offense. 247 N.J.Super. at 260-61, 588 A.2d 1282.

II

HN1The New Jersey Code of Criminal Justice, N.J.S.A. 2C:14-2c(1), defines "sexual assault" as the commission "of sexual [***9] penetration" "with another person" with the use of "physical force or coercion." n1 An unconstrained reading of the statutory language indicates that HN2both the act of "sexual penetration" and the use of "physical force or coercion" are separate and distinct elements of the offense. See Medical Soc. v. Department of Law & Pub. Safety, 120 N.J. 18, 26, 575 A.2d 1348 (1990) (declaring that no part of a statute should be considered meaningless or superfluous). Neither the definitions section of N.J.S.A. 2C:14-1 to -8, nor the remainder of the Code of Criminal Justice provides assistance in interpreting the words "physical force." The initial inquiry is, therefore, whether the statutory words are unambiguous on their face and can be [*430] understood and applied in accordance with their plain meaning. The answer to that inquiry is revealed by the conflicting decisions of the lower courts and the arguments of the opposing parties. The trial court held that "physical force" had been established by the sexual penetration of the victim without her consent. The Appellate Division believed that the statute requires some amount [***10] of force more than that necessary to accomplish penetration.

Was That Rape? (or just regrettable sex)

In Crim class we've started talking about rape.

I'm a squeamish prude so class makes me very uncomfortable. My whole policy on the topic of s-e-x, is "Don't ask, don't tell, and PLEASE don't talk to me about it!"

But a law student doesn't have that luxury. I've had to read numerous cases so far with quite detailed and graphic descriptions and I've learned some new words describing some pretty crass acts (which I will spare you all from here).

Legally speaking however, rape is a very interesting and unique crime. It is the only crime where the alleged victim's words and conduct are scrutinized more than the defendant's. The focus is on what the victim said, did, etc. Did she lead him on? Did she say no? When she said no, did she really mean no?

In general, we read a lot of cases on the borderline between consent and non-consent. Those cases are full of passive girls who didn't verbally or physically object and willingly engaged in almost everything but sex. In my generation, it was called going to all the bases except for "home."

Girls like that shouldn't have the law on their side. I mean, come on, what did you THINK would happen? If you play with fire, are you surprised you got burned? Of course I have sympathy for misguided souls who exercise poor judgment (we all do from time to time). But my sympathy and "criminally charging an innocent hormone-driven guy" are two different things.

A guy shouldn't be punished for being...well, just a normal guy.

Injustice

There are a lot of ironies in the tragic case of Ronald Cotton.

(Ronald Cotton forgave rape victim Jennifer Thompson for mistakenly identifying him as her attacker, sending him to prison for 11 years. Now, they are friends.)

In 1985, Ronald Cotton was convicted of raping Jennifer Thomson, a 22-year old college student in North Carolina. But he didn't do it.

The prosecution built most of its case around Jennifer's strong and confidant eyewitness identification of her assailant. She picked him out of a photo array of six black men and then she picked him out of a live line-up. She was sure he was the one.

11 years later, DNA evidence would show that Jennifer was wrong.

The irony is that Jennifer was not your average rape victim. As soon as she realized that her rapist would harm her, she made every effort to get a good look at his face and memorize his features. Though the attack was in the dead of night, she made excuses to turn on lights throughout the duration of the rape, although her assailant would quickly tell her to turn them off. Her every effort was trained on being able to identify him in the future because she wanted to make pay for his crime.

Aside from Jennifer's powerful testimony and identification, the jury had no other evidence to lead them to Ronald, except for some small misfortunes. Under Ronald's bed, police found a red flashlight (which was a popular model that thousands of people owned) that looked like the flashlight that the rapist had used. They also found some tennis shoes that lacked some foam on the tread, like the foam the rapist had left behind on Jennifer's apartment floor (which also could've been the kind of foam on thousands of people's tennis shoes). And unfortunately for Ronald, he was too confused when he was first questioned by the police about his alibi and told them faulty information. The fact that Ronald had prior convictions of attempted rape and breaking and entering only made his plight more hopeless.

However, the last and greatest irony in this sad case concerns a man named Bobby Poole. While Ronald was in jail for the first couple of years, his cellmate and prison workmate, Bobby Poole, admitted to some prisoners that he was the one who actually raped Jennifer Thomson that night. Bobby knew that Ronald was in jail for his crime. Yet being the scumbag that he is, he never told the authorities and continued to let Ronald suffer unjustly.

The saddest irony is that, after nearly two years of Ronald's wrongful incarceration and much effort on Ronald and his lawyer's part, Bobby Poole was actually put on trial for the rape of Jennifer Thompson. But during that trial, Jennifer looked straight at him and said, "I've never seen this man in my life. He's not the one who raped me. I'm sure."

Crime and Punishment

In Crim Law, one common area of debate is what the proper punishment for convicted offenders should be.


I've always felt that castration would be a fair punishment for multiple sex offenders.

It's like mother nature's rule: If you don't use it, you loose it. Except it's more like, If you abuse it, you loose it.

Of course I won't share that in class discussions. People will think I'm harsh and simplistic (which I am). But if someone says "Penal code," I will giggle.

Professors say the darnest things

Sometimes everything in your life comes together at one point and it makes you say, "Yes, I'm glad to be alive today."

Well, nothing that inspiring happened today, but something did transpire that made me say, "Yes, I'm so glad I went to class today." And believe you me, it takes a pretty darn priceless moment for me to be happy I went to class.

We were talking about duties here and there, as usual, when suddenly the professor unwittingly spouted out the most hilarious sentence I have heard thus far in the semester. Addressing a hypothetical situation with a student, he said:

"Ms. Harnett is a willing tool."
Ha ha ha ha ha ha! It's funny because it's true! Unbeknownst to the confused prof, but in the opinion of the whole class, which by now was exploding with laughter, Ms. Harnet is a willing tool. An earnest, annoying, willing tool. I hope I don't get in trouble with Ms. Harnett for posting this...