Rape - General Crime:
In California, being accused of and/or charged with rape is very serious, and the Police, Sheriffs, and Prosecutors vigorously pursue and punish those accused of rape. Rape is an extremely serious accusation to make against another, but unfortunately many innocent people are falsely accused and prosecuted for rape.
Rape is punished under California Penal Code §261, which defines rape as sexual intercourse with another under various enumerated circumstances. Depending on the circumstances, the charge may be a lesser-included offense of rape or a different type of rape crime punished under related penal sections.
The mere allegation of rape can significantly affect the life of anyone accused of rape. Therefore, it is essential to speak with a knowledgeable San Diego criminal lawyer as soon as possible after such an accusation - in some instances early legal intervention may prevent prosecution altogether.
Elements of PC §261 - Rape:
To be convicted of Rape the Prosecutor must prove each of the following elements beyond a reasonable doubt:
1. You had sexual intercourse with another;
a. Sexual intercourse is defined as any penetration of the vagina by the penis, no matter how slight the penetration (penetration does not require ejaculation).
b. Both men and women can commit rape.
2. You were not married to that person at the time;
a. If you were married to the other person and the other elements of rape are present, the crime is known as "Spousal Rape," which is punished pursuant to CA PC §262.
3. The other person did not Consent to the intercourse;
a. See Consent discussion below.
AND
4. You achieved the intercourse through:
a. Force, violence, duress, menace, or fear of illegal and immediate physical harm to the other person or someone else;
i. Duress: Threats (explicit or implied) that would make a reasonable person feel compelled to act or not do something they otherwise wouldn't have done or not done.
ii. Menacing: Showing an intention to injure another.
iii. Intercourse by Fear: Where another actually and reasonably fears for their safety, or if they unreasonably fear for their safety and you know they are afraid and exploit that fear.
b. Future threats of bodily harm to the other person or someone else;
i. This includes threats of kidnapping, false imprisonment, or of extreme pain, injury, or death.
c. Threats of official action (arrest, jail, deportation).
If the Prosecutor is unable to prove even one of these elements beyond a reasonable doubt, you may not be convicted of Rape under CA PC §261. Contact an experienced Criminal Attorney in San Diego if you are accused of rape to discuss your case and any defenses in order to ensure the best possible outcome for you.
Consent:
Consent is defined as the other person freely, knowingly, and voluntarily participating in the act. The consenting party must be able to exercise reasonable judgment. To prove lack of consent, the Prosecution bears the burden to prove beyond a reasonable doubt that you did not actually and reasonably believe the other person consented.
Consent may be withdrawn during the act - This can happen if:
1. They communicate to you that they object to having sex and try to stop it;
2. A reasonable person would've understood the objection (verbal or through acts) to show lack of consent;
AND
3. You forcibly continued the intercourse against their objection.
→ Note: The alleged rape victim is not required to physically resist.
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San Diego Criminal Lawyer on Rape and other Sex Crime Charges
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Alexander on a Theory of Self-Defense
Larry Alexander (University of San Diego School of Law) has posted Recipe for a Theory of Self-Defense: The Ingredients, and Some Cooking Suggestions (The Ethics of Self-Defense (OUP); C. Loons and M. Weber, eds. Bowling Green State University (2014)) on...
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Fatal ATV Crash Bannock County
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
DO NOT REPLY
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Idaho State Police
District 5 5205 South 5th Ave.
Pocatello, Idaho 83204-2299
(208) 236-6466 FAX: (208) 236-6068
For Immediate Release: 06/20/13 07:00 p.m.
Please direct questions to the District Office
On Thursday, June 20, 2013, at approximately 3:00 p.m., Idaho State Police investigated a fatal ATV crash on Maple Grove Lane, near Pocatello Creek Road, in Bannock County.
The rider was driving southwest on a nearby embankment on a Honda ATV. The ATV rolled down the side of the embankment and came to rest on top of the rider. The rider, who was not wearing a helmet, succumbed to their injuries at the scene.
More information will be released after notification has been made with the rider's family.
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Fingerprint Experts Shouldn't Make Claims They Can't Support
So, last year, I wrote an article entitled "Fingerprint Evidence Not Always Accurate", and the article discussed a few issues regarding the scientific reliability of fingerprint evidence.
Basically, fingerprint comparisons are a statistical science due to the probabilistic nature of such comparisons (isn't most science, at its core, probabilistic? The behavior of matter, on the quantum level, is probabilistic). For example, when a fingerprint examiner claims that two prints "match", the general public just assumes that the two prints are identical. But this is an incorrect statement. Actually, the expert fingerprint examiner has merely "matched" a few unique points on the two prints, and from those matches he/she just presumes that the rest of the fingerprint must match up as well. That's hardly an exact match, or an exact science.
When a fingerprint expert claims that the defendant's fingerprint matches a print at the crime scene, the expert has merely identified patterns and placements of features like loops and ridges-- leading to the claim that no two prints on Earth would have 4 loops and 5 ridges in said locations. Is that so? Well, the odd thing is, no large scale scientific study has ever been done to create any sort of foundation to support such statistical claims. Indeed, it may be that several hundred, or thousand, or whatever, people may have those loops and ridges in those locations on their finger. We just don't know, no one has bothered to study it. But I can assure you, every prosecutor in Florida is ready to tell a jury the "fact" that the fingerprint at a crime scene IS from the defendant's finger. That the fingerprint IS a MATCH. Wow! No two prints are the same, right?
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Appeals Court Rules Madoff Trustee Can't Pursue Banks for $30 Billion in Claims
"No doubt, there are advantages to the course Picard wants to follow. But equity has its limits."
A federal appeals court dealt a significant setback to the quest to recover funds for victims of Bernard Madoff's $65 billion Ponzi scheme, ruling that the court-appointed bankruptcy trustee could not pursue claims totaling more than $30 billion against financial institutions accused of aiding the scheme. The U.S. Court of Appeals for the Second Circuit issued a unanimous order Thursday upholding the dismissal of claims that JP Morgan, HSBC, Unicredit, and UBS (the "Financial Institutions") 'aided and abetted' Madoff's fraud by ignoring numerous red flags that should have alerted them to the fraud. The three-judge panel agreed that, under the theory of in pari delicto, because the bankruptcy trustee, Irving Picard, stood in the shoes of Madoff's former firm, he was precluded from bringing claims against third parties for their role in a fraud that Madoff's firm masterminded.
Picard filed lawsuits against a multitude of financial institutions in 2009 and 2010, including the Financial Institutions. Originally filed in bankruptcy court, the Financial Institutions sought to have the actions removed to federal district court based on Picard's standing to assert the claims, as well as whether the claims were precluded by the Securities Litigation Uniform Standards Act. In late 2011, two different federal judges in the Southern District of New York granted motions to dismiss the trustee's common-law claims against the Financial Institutions, finding that Picard's claims were barred by the doctrine of in pari delicto. Picard immediately appealed those decisions.
The doctrine of in pari delicto, translating to 'in equal fault,' is a compelling defense in the realm of bankruptcy jurisprudence, as "a debtor’s misconduct is imputed to the trustee because, innocent as he may be, he acts as the debtor’s representative." The Wagoner rule, drawn from the seminal case of Shearson Lehman Hutton, Inc. v. Wagoner, bars a trustee from suing to recover for a wrong that he himself essentially took part in. 944 F.2d 114, 118 (2d Cir. 1991). Under this authority, the Second Circuit reasoned that
Picard alleges that the Defendants were complicit in Madoff’s fraud and facilitated his Ponzi scheme by providing (well-paid) financial services while ignoring obvious warning signs. These claims fall squarely within the rule of Wagoner and the ensuing cases: Picard stands in the shoes of BLMIS and may not assert claims against third parties for participating in a fraud that BLMIS orchestrated.
Dismissing Picard's claims that the doctrine did not apply or, in the event that it did, he was exempted as a trustee under the Securities Investor Protection Act, chief Judge Dennis Jacobs remarked that "Picard's scattershot responses are resourceful, but they all miss the mark."
While Picard appealed to principles of equity in contending he should be permitted to bring the claims, the Court questioned the merits of this approach, remarking "it is not obvious why customers cannot bring their own suits against the Defendants." As the Financial Institutions pointed out, indeed some victims have already done so.
While Picard still holds bankruptcy claims against the Financial Institutions totaling more than $4 billion, the Second Circuit's decision is a significant setback in the quest to recover funds for Madoff's victims, who to date have received three distributions of approximately 43% of approved losses. To date, Picard has approved approximately $11 billion in claims, while he has recovered approximately $9.3 billion.
A copy of the Court's decision is here.
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Drug dealer charged with rape
Sometime between the days of 6 November 2002 to 6 March 2003, defendant allegedly sold, on nine separate occasions, quantities of cocaine and marijuana to an undercover police officer at various locations in Kings County, New York. On 29 May...
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Sex offender signs draw mixed reactions
6-20-2013 Florida:
Bradford County sheriff receives praise, DISAPPROVAL
It has been two months since the sheriff of rural Bradford County in northeast Florida erected signs in front of the...
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Funk on Deadly Drones, Due Process, and the Fourth Amendment
William Funk (Lewis & Clark Law School) has posted Deadly Drones, Due Process, and the Fourth Amendment (William & Mary Bill of Rights, Vol. 22) on SSRN. Here is the abstract: The use of drones to target individuals, especially American...
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Five who were accused are convicted
The police in Brooklyn suspected that a drug repacking business was carried out in an apartment building by the members of one family. They wrote down all the facts they have so far gathered about the heroin-repacking business in an...
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Norwood Massachusetts Police Arrest Suspected Drug Dealer, Two Others on Marijuana Distribution and Related Massachusetts Drug Crimes
Over two weeks ago police in Norwood, Massachusetts executed a Search Warrant at an apartment complex. This followed an investigation into alleged Drug Dealing activities by Henry Samuels, a twenty-four year old Norwood resident. In August of 2012 Samuels was...
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Earlier Hopes of Madoff Victims for Some New Jersey State Tax Relief Are Fading - Installment 92
Michael Kline writes:
Installments 63 and 81 of this blog series reported on two separate opinions of the New Jersey Tax Court (the “Tax Court”) regarding the Madoff Ponzi scheme, one an unpublished memorandum opinion on New Jersey income tax and the other an opinion approved for publication on New Jersey estate tax (the “Warshaw Case”). In each of the two cases, the Tax Court reversed the Division of Taxation of New Jersey (the “Division”), which was trying to retain state tax monies previously paid by Madoff victims. The Tax Court sided with the plaintiff taxpayers in their efforts to obtain refunds relating to New Jersey income and estate tax payments that were made based on fictitious profits and valuation respecting their investments with Madoff.
In its continuing quest to thwart tax refunds to Madoff victims, the Division appealed the decision in the Warshaw Case to the Superior Court of New Jersey, Appellate Division (the “Appellate Division”), Docket No. A-00884-12T1 (the “Warshaw Appeal”). On June 10, 2013, the Appellate Division reversed the summary judgment decision of the Tax Court in the Warshaw Case that had awarded a tax refund to the taxpayer of $88,677.
In reversing the tax refund, the Appellate Division stated the following:
There is no evidence in this record that suggests anyone had knowledge that BLMIS [Madoff] was running a Ponzi scheme around the date of decedent’s death [May 27, 2006]. As a result, there was no basis to question the date-of-death value . . ., especially because decedent’s wife continued to receive substantial distributions [from Madoff] in 2007 and 2008.
While it is not known whether the taxpayer in the Warshaw Appeal will seek a review by the New Jersey Supreme Court, the Appellate Division has aligned New Jersey with many other states to make them permanent beneficiaries of the Madoff scandal at the expense of Madoff victims. Like many other legal issues generated by Madoff, more may be heard on state tax matters in the future, even though it is already more than 4½ years since his Ponzi scheme became public.
[To be continued in Installment 93]
(Michael J. Kline, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office, and is a past Chair of the firm's Corporate Department. He concentrates his practice in the areas of corporate, securities, and health law, and frequently writes and speaks on topics such as corporate compliance, governance and business and nonprofit law and ethics.)
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Thursday Night Open Thread
I have been glued to the George Zimmerman jury selection for the past 10 hours and have to take a break from the computer.
Our "recent comments" section has now been fixed thanks to our webmaster Colin. The site crashed altogether around 2 am, and...
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"Jury Selection Reaches Final Stages in Trayvon Martin Murder Case"
From the New York Times. In part: The woman who believed “the more guns the better” was out. So was the bearded guitarist who claimed to have no opinion on the case — until the judge confronted him for writing...
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Foster homes are now protected from sex offenders living near-by
6-20-2013 Alabama:
The Decatur Police Department is wanting foster families to know that they are now protected in the Sex Offender Notification and Registration Act.
The Sex Offender...
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"North Carolina Racial [In]Justice Act Goes Down"
The post is at Crime & Consequences. In part: The Associated Press misreports the event thusly: Gov. Pat McCrory has signed into law a repeal of a landmark act that allowed convicted murderers in North Carolina to reduce sentences to...
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U.S. v. Edward J. Snowden – Federal Criminal Complaint
As Mr. McNabb predicted, the U.S. has charged Mr. Snowden in a Federal Criminal Complaint. He was charged on June 14, 2013 with the following federal criminal violations: 18 USC 641 – Theft of Government Property 18 USC 793(d) – Unauthorized Communication of National Defense Information 18 USC 798(a)(3) – Willful Communication of Classified Communications […]![]()
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Who really benefits from the Interlock requirements after a DUI arrest?
There are six categories of Driving Under the Influence (DUI) in Illinois. 625 ILCS 5/11-501 These include driving under the influence of legally prescribed drugs, driving under the influence of any compound that causes driving impairment ("huffing"), driving with any amount of an illegal substance in your system, even if you are not under the influence and driving with a combination of the above so that it causes impairment.
But by far the most common type of DUI arrest in Illinois involves alcohol. Under the alcohol category are two kinds of DUI.
One is DUI that causes bad driving, proven by the officer's observations and your performance on standardized field sobriety tests (SFTS). The other is driving with a BAC of .08 or greater, which does not require proof of actual impaired driving due to alcohol.
There is one type of breath test device that provides what is knowns as a "Preliminary Breath Test" (PBT). It is a small, handheld device that the users blows into.
The results of the PBT cannot be used as evidence of your blood alcohol content (BAL) or to prove beyond a reasonable doubt that your BAL was .08 or higher. 625 ILCS 5/11051.5 Before the police can arrest a driver for DUI, they must establish probable cause that the driver is under the influence.
The tools available to the police for maklng this determination include standardized field sobriety tests which includes the horizontal gaze nystagimus (HGN) where the officer passes a small object in front of the subject's eyes, the one-legged stand (stand on one leg for 30 seconds) and the walk-and-turn (take 9 steps, turn around and take 9 steps back). In addition, the PBT law states that if the officer has reasonable suspicion to believe the person is under the influence, he may request a PBT and consider the results of it in reaching a probable cause determination and in requesting further tests.
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Fatal crash SH8 @ 7 Latah County
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
DO NOT REPLY
---------------------------------------------------------------------------
Idaho State Police
Regional Communication Center - North
615 W Wilbur Ave Suite A
Coeur d'Alene, Idaho 83815
Please direct questions to the appropriate District Offices
District 1 (208) 209-8620 Fax (208) 209- 8618
District 2 (208) 799-5150
CASE # L13000470
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DATE: 06/21/2013 TIME: 2:58 pm LOCATION: EB SH8 @7 Deary, ID
ASSISTING AGENCIES: Latah County Sheriff, Idaho Transportation Department
VEHICLE #1
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DRIVER - Roger D Williams AGE - 60
ADDRESS - Deary, ID
INJURIES - Fatal
HOSPITAL/LOCATION TAKEN - Shorts Funeral Home
VEHICLE YEAR - 1984 VEHICLE MAKE- Toyota VEHICLE MODEL - Pickup
WRECKER - Brandt Brothers towing
SEATBELTS/HELMET WORN - No
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VEHICLE #2
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DRIVER - David A Casey AGE - 57
ADDRESS - Moscow, ID
INJURIES - Yes
HOSPITAL/LOCATION TAKEN - Gritman Hospital
VEHICLE YEAR - 1990 VEHICLE MAKE - Ford VEHICLE MODEL - F250 PK
WRECKER - Moscow Auto
SEATBELTS/HELMET WORN - Yes
PASSENGER(S)
PASSENGER # 1 - Richard T Miller AGE - 35
ADDRESS - Potlatch, ID
INJURIES - Yes
HOSPITAL/LOCATION TAKEN - Gritman Hospital
PASSENGER # 2 - Cody A Hirschler AGE - 35
ADDRESS - Potlatch, ID
INJURIES - Yes
HOSPITAL/LOCATION TAKEN - Gritman Hospital
INCIDENT NARRATIVE: Williams was traveling eastbound on State highway 8 at milepost 7 when he crossed the centerline, striking the West bound Casey vehicle in the right quarter panel. Williams vehicle continued eastbound for a short time, coming to rest on its side in the westbound ditch. State highway 8 was blocked in both directions for approximately 4 hours. Investigation continues by the Idaho State Police.
DSP INITIALS hasg
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MD - Sex offender removed from Md. registry; could be first of many
Original Article
06/21/2013
By Aaron C. Davis
Maryland officials in recent weeks quietly removed the mug shot of convicted child molester [name withheld] from the state’s sex-offender...
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CANADA - Community freaks out because an ex-sex offender is released
Original Article (Video available)
06/21/2013
Saint John residents are concerned over news that another convicted sex offender is moving into the area.
[name withheld] was released from the...
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More Pages to Explore .....
