What Is The Legal Definition Of Sexual Assault?

Even in 2019 there is a great deal of confusion surrounding the crime of sexual assault. Is sexual assault also rape, or vice versa? Does our legal system at the state or federal level accurately convict and punish perpetrators of sexual assault based on those legal definitions and sentencing guidelines? In today’s “rape culture” these are complicated questions to answer, so let’s start at the beginning.

Under federal law, “rape” is defined by an act of “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” Legally, no force is required to commit the crime of rape.

Under federal law, “sexual assault” is defined by the National Center for Victims of Crime as “attacks such as rape or attempted rape, as well as any unwanted sexual contact or threats. Usually a sexual assault occurs when someone touches any part of another person’s body in a sexual way, even through clothes, without that person’s consent.”

The difference between rape and sexual assault is sometimes vague, as one is often included in the definition of the other. For the most part, rape is limited to a form of penetration of the vagina, anus, or mouth — as long as there was not consent. Sexual assault, on the other hand, usually describes more forceful sexual activity that occurs without consent. The range of activities that may be used to describe sexual assault is also grander in scope, and can include anything from light groping to forceful rape.

Most agencies that do any kind of research into rape or sexual assault inevitably estimate that the vast majority of all related crimes go unreported, and that the vast majority of those that are reported do not go to trial or result in a criminal conviction. For every 1000 sexual assault cases, only 5 perpetrators will face a felony conviction and, oddly enough, slightly fewer will spend time in prison.

You can imagine the effect this has on the victims.

You can also imagine the reduced likelihood of a person who was sexually assaulted or raped just once ever coming forward again when the perpetrator of a similar crime walked free the last time. It’s a major obstacle to trying sexual assault or rape cases.

Many prosecutors in the United States decide not to prosecute sexual assault or rape cases based on the likelihood that a jury will not convict based on evidence that should convict. There’s an understanding that the typical American juror is biased by criminal justice shows like CSI, which teach the layman to expect a slam-dunk piece of evidence — which rarely exists in the real world.

Can People Really Get Arrested And Tried For Breaking These Crazy Laws?

We’ve all heard about the dumb laws that no one has scrubbed from the books yet. In NYC, it’s illegal to throw a ball at someone’s face, sell your pet’s hair, flirt, hang your clothes to dry outside, or take a selfie with a tiger. Most of these wacky legislative overreaches don’t result in arrests, but what about the ones that do? What should you do if you find yourself in hot water with the police after breaking an old law no one even knew still existed? Here’s the long and short of it.

An 1897 Michigan law — still on the books, of course — says you cannot curse when women or children are around to hear the foul language. In 1998 someone was arrested for breaking this law. He fought it in court and lost. His penalty? A $75 fine and four days community service. Maybe the guy was lucky: he could have spent about 90 days locked away for the criminal offense. But what makes this worse isn’t just the absurdity of the law — it’s that there were mitigating circumstances.

And what would those be, you ask?

Well, seconds before the man began to utter the foul language, he had overturned his canoe along the Rifle River in Michigan. The water was cold, and the experience was sure to be shocking. Who wouldn’t curse in that situation?

And yet a jury still convicted him of the strange crime. Thankfully, the man appealed the case and Judge William Murphy of the Michigan Court of Appeals overturned the conviction in 2002. Murphy wrote: “Allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to misdemeanor conviction. We find it unquestionable that [the law], as drafted, reaches constitutionally protected speech, and it operates to inhibit the exercise of First Amendment rights.

Although this man was eventually let off the hook, it speaks to the reality of our broken criminal justice system, and exemplifies the many changes that must be made for it to work fairly for everyone instead of just a chosen few. It also conveys the importance of erasing old laws, because at the end of the day, juries are instructed to base their verdict on the law and not on their own conscience or perception of morals.

In other words the law determines the difference between legal and illegal, but not the difference between right and wrong in the modern era. If you are arrested, you need to find yourself a qualified criminal defense lawyer whether you feel you did wrong or not.

What Is The Legal Definition Of Jaywalking?

Most of us know to be careful when we venture into a new city. The people who live there are almost always kind enough to give us a head’s up: will the local law enforcement care if we cross the street if there’s no marked crosswalk? In some cities it’s a common practice to ticket someone for jaywalking, while in others it isn’t. It’s especially easy to ticket a tourist jaywalker because you know they’re unlikely to show up to defend the ticket in court three months later.

Jaywalking means that a person has crossed a street where a crosswalk and/or traffic light is available without using either for assistance. This is considered reckless behavior and represents a misdemeanor in most jurisdictions. On top of that, the jaywalker may be civilly liable for any injuries that result from the unlawful street crossing because of the technical negligence.

This is one of the least respected laws on the books, but there is significant reason to give pause when crossing the street: new technologies are making it easier than ever to locate, ticket, and even blacklist tourist offenders. Beijing in particular is considering the implementation of facial recognition technology to catch tourists in the act. It might seem silly, but the sheer number of tourists has resulted in lots of unruly behavior, and Chinese officials want to do something about it.

In the United States, a pedestrian cannot be ticketed if there are no traffic lights or crosswalks available unless the street crossing was blatantly reckless because of heavy traffic. Officers and pedestrians are sometimes both confused about the presence of “unmarked” crosswalks, though, which can become a pain for everyone if the rare jaywalking ticket is written.

Technically, a crosswalk exists at any street intersection whether specifically marked or not. While it may seem less safe to cross at an intersection where you have to take into consideration the traffic flow from all four directions — as opposed to crossing a single street after looking both ways — legally you still have to cross at the intersection to avoid the ticket. 

Unmarked crosswalks therefore exist in locations where the flow of pedestrian traffic is uncontrolled. In these locations there won’t be any “walk” or “don’t walk” light, which means the burden is on the pedestrian to take extra care. If you are stopped or ticketed after trying to cross the street at an intersection, you can likely get the ticket to go away if you show up in court to fight it. Contact a traffic lawyer to make sure that the intersection did not specifically restrict pedestrian crossings.

The Legal Definitions You NEED To Know When You’re Arrested

How many people are arresting without having done anything wrong? The number may be higher than you expect. After all, most people won’t do whatever it is they’re doing wrong if they think there’s a good chance of getting arrested. That means most people who are arrested aren’t prepared for it. They don’t know the legal regulations and procedures that govern arrest and arraignment. They don’t know the legal jargon. These are the legal definitions you absolutely need to know when you’re arrested.

 

  • Arrest. First and foremost, what is an arrest? If an officer has reasonable suspicion and ascertains probable cause that a crime has been committed by an individual, then the individual may be charged with a crime and arrested. An arrest means you’re taken into custody. You’ll be handcuffed and your Miranda rights will be read. You’ll be told specifically which crime the police intend to charge you with. This description is what comes to mind most often when people contemplate the details of an arrest. More specifically, it’s called a “custodial” arrest. Sometimes there is a “non-custodial” arrest. In this case, you’ll be given an in-writing summons or ticket telling you when and where to appear in court. On occasion, you can avoid court by paying a fine. Either way, you should consult with an attorney to explore the best option for you.
  • Detention. If you’re taken into custody without being read your Miranda rights, then you’re likely being detained. This means the authorities have reasonable suspicion that a crime has been committed, but they haven’t yet ascertained probable cause. If in the course of the detention an investigating officer discovers more details of the crime, you may be formally Mirandized and arrested.
  • Arraignment. This is the first appearance in front of a judge in court. Although the arresting officer should have already informed you of the intended charge, the Sixth Amendment of the United States Constitution mandates that the charge is read aloud by a judge. If this does not happen within a few days, the legal defense may have a defense to keep you from court.
  • Booking. This is the part of the procedure in which a suspect will have his or her personal information and fingerprints taken for the record. Many times the suspect will be photographed. Although a suspect may be released immediately by the judge, booking is also the point at which he or she may be placed in holding. When this occurs personal possessions are confiscated.

What Is Restitution In Criminal Law And When Does It Apply?

Restitution isn’t purely a legal term, so you may have heard it used from time to time in other circumstances far removed from the courts and criminals and defendants among us. It means something similar in either case. Restitution involves setting something back to rights. It means restoring something damaged or lost to the person whose it was. It’s also a process for compensating victims.

In law, we often refer to restitution using another word: “damages.” Either pretty much means the same thing. A criminal defendant may be obligated to pay damages or restitution fees to a victim after a court case has ended. This isn’t the same thing as a fine, which is something you pay the court or government to reimburse them for the time they had to spend prosecuting the case.

For example, if you injured another party in a barroom brawl that you started, you might be forced to pay restitution to cover the victim’s medical expenses. In order for restitution to remain applicable, the victim must prove that those expenses were incurred, up to and including monies lost if the victim’s capacity to produce at work was affected.

Restitution is considered an “equitable” remedy if the court system can find a money trail. If it can trace money owed, then a constructive trust or equitable lien will be set up in order to repay those monies. A constructive trust occurs when one party holds property for another party. An equitable lien pretends one party from benefitting from another.

Restitution is considered a “legal” remedy when the money trail can’t be followed and the property can’t be rightfully identified. Legal remedies are often applied for unjust enrichment or other forms of personal liability. Unjust enrichment is much as it sounds: it occurs when one party receives any kind of benefit from through unlawful or illegal means.

Restitution is a form of compensation primarily used in criminal courts; sort of like a form of civil suit within the criminal legal system. That said, if you don’t acquire restitution through the criminal court system, then you may still be able to bring a civil suit against the defendant because they require a lower standard of proof.

Examining Back To Back Life Sentences

This legal term is strange because how can someone serve two life sentences when we only have one life?  When a judge decrees sentencing and orders back to back life sentences, he is ensuring that the prisoner will stay in prison. In order for this to be applicable, both crimes that the felon was convicted of need to have “life in prison” as an applicable sentence.

When a felon is sentenced to life in prison, most of the time, after 25 years of the sentence, the felon is up for parole. A double life sentence ensures that even after 25 years of serving the first life sentence, the felon has to wait an additional 25 years before being eligible for parole again for his second sentence (even if he “receives parole on the first sentence). Therefore, it ensures at least 50 years of imprisonment.

Sometimes the felon will be sentenced to life imprisonment without the possibility of parole. The only way a felon will be able to leave prison will be through an appeal or through amnesty, reprieve, or commute by a government official. Many judges decide to give two consecutive life sentences as an insurance that the felon will at least be able to carry out one life sentences in the event that one of them gets overturned on appeal.  A good criminal defense attorney will always attempt to get the life sentences served concurrently rather than consecutively.

There are many infamous criminals who are servicing consecutive life sentences such as Ted Kaczynski aka the Unabomber. He is serving 8 consecutive life sentences without the possibility of parole.  Famous mobster John Gotti is also was sentenced to life imprisonment without the possibility of parole. He was convicted in 1992 and submitted his final appeal in 1994. He died in prison in 2002. Rusell Henderson who was convicted of murder and kidnapping of Matthew Shepherd in Laramie, Wyoming, pleaded guilty in order to escape the death penalty. He was sentenced to two consecutive life sentences. His partner Aaron McKinney was also sentenced to two consecutive life sentences.

What Does “Fiduciary” Mean And When Is It Used?

The law can be complicated enough without the absurd jargon associated with many legal scenarios. The word fiduciary can be defined easily enough, but the situations in which it is used are varied and complex.

When used as an adjective, the word refers to the confidence between a trustee and beneficiary. As a noun, it refers to the trustee. Both of these apply in similar ways in a legal framework. It can also refer to a relationship based on ethical understanding, like that of a lawyer and client. A fiduciary is often responsible for money or assets belonging to a second party.

In law, you might hear of “fiduciary duty,” which refers to the obligation one party has to another party. Anyone who has a fiduciary responsibility is required to hold high standards of transparency. There must be no personal benefit for a fiduciary if it comes at the expense of the other party. When this agreement is not upheld, there is a breach of fiduciary duty. The guilty party can be held liable for any resulting damages.

When President Trump took office, he requested a review of the “Fiduciary Rule” in 2017. This rule would require financial advisors to act in the best interests of their clients, which seems like an obvious enough standard. Naturally, Trump wants to kill it (it was Obama’s child, after all). The rule is not yet set in stone, and a review could also allow those in charge of retirement accounts to put their own financial needs ahead of clients whose lives and livelihoods could be adversely affected. The point of the rule is to promote a fiduciary-like relationship between financial advisors and clients much like lawyers and their clients, or doctors and patients.

Although legal jargon can be complicated, sometimes it’s important that the average American knows a term or two for the continued wellbeing of all relevant parties. Fiduciary is one such term, especially where the Fiduciary Rule is concerned. If we don’t have the knowledge to keep our government in check, then it won’t hold itself or others to the necessary standard.

What Is A Laches Defense?

In theory, some civil or criminal lawsuits can come up at any time, even years after an incident occurred.

It doesn’t mean that every single case will be legally legitimate.

In these cases, time is always a factor.

But there are those who will try to ignore time and would rather wait a while and then ambush you with a claim from years ago, perhaps expecting and knowing that you won’t’ have a good defense to put forth.

But in legal circles, that would not be fair. And some legal doctrine demands a fair trial process.

And in situations where there is no statute of limitations on the books, a potential defendant in one of these “ambush” lawsuits can claim what is called a Laches defense to nullify the claim.

The Laches defense is a tactic that essentially protects defendants from these kinds of lawsuits based on an unreasonable time frame in the claim being filed. If the amount of time has passed is sufficient to essentially prevent the defendant from launching a fair defense, the case can be dismissed – despite the validity of the claim – based on the Laches defense.

What determines a valid Laches defense? There are a few things that must be present (or not present, as the case may be):

  • Lack of effective witnesses because of death or relocation.
  • Erosion or disappearance of evidence.
  • The property the plaintiff wants to recover (if applicable) is n longer into eh defendant’s possession.
  • The defendant’s situation has changed for the worse since the incident; meaning that he or she would be less likely to meet any monetary award.

Of course, not all of these elements have to be present in a Laches defense, and even if they all were present, the judge ultimately has discretion in determining whether a Laches defense can be used in that particular claim. As every situation and judge is different, it is difficult to establish any precedent in such cases, so it is always case-specific.

What makes a Laches defense different from a case that has a statute of limitations? A statute of limitations is a law on the books that give a specific time frame for a claim or charges to be brought against a defendant. In these cases, the time frame is codified as a number of months or years and the factors mentioned above for a Laches defense are irrelevant.

A Laches defense is used in other cases in which the incident or the alleged offense does not have a specific statute of limitations on it. There is enough of a risk of nullification that if you have a claim, you are always encouraged to file that claim as quickly as possible to keep your claim legitimate in the eyes of the court.

An ambush is the least popular bush in legal circles.

What Is The Bankruptcy Code?

The Bankruptcy Code is the informal name of the federal bankruptcy law; 11 U.S.C. §§ 101-1330. Bankruptcy laws were created to help people who are no longer in a financially secure situation a chance to start over.

There are several different types of bankruptcy referred to their Chapter in the actual federal law.

Chapter 7 is for liquidation which is the sale of a debtor’s nonexempt property and the distribution of what is earned back to the creditors.

Chapter 9 is for reorganization for municipalities such as cities, towns, villages, counties, and school districts.

Chapter 11 is for reorganization for corporations or partnerships. A debtor usually proposes a plan of action to keep its business alive and the scheduled payments to creditors.

Chapter 12 is for farmers and fisherman and readjusting their debts.

Chapter 13 is for normal wage earners. A debtor is allowed to keep property and use their disposable income to pay off creditors over a three to five year period.

Chapter 15 is for cases dealing with cross-border insolvency. Insolvency is a fancy way of saying the inability to pay debt.

How Do You Know Which Chapter To File? 

A bankruptcy judge and a court trustee examine the assets and liabilities of an individual or a business who cannot pay off their debts. Then they determine which debts the individual or the business will no longer need to pay legally. Therefore, they will determine under which bankruptcy chapter to file.

Bankruptcy does not qualify for student loans, alimony and child support, debts that occur after bankruptcy is filed, taxes, debts from settlements and verdicts.

Bankruptcy will also remain on your credit score for 7-10 years and might prevent you from applying for more lines of credit or applying for jobs. It is only advised for you to file bankruptcy if you are more than $15,000 in debt otherwise the damage to your credit score might be significant.

 

Does Premise Liability Cover Trespassers?

Are you Liable if a Trespasser gets Injured on Your Property?

Premises liability can be one of the more complex areas of personal injury law. In the case of a trespasser, the rules can enter a deeper gray area. I know, this is going to be hard to believe, but in some situations, a trespasser can technically sue for premise liability, even if they were never supposed to be on the property.

As a general rule, property owners are not responsible for trespassers’ injuries.  While there are exceptions to this rule, the court generally has every right to tell the trespasser that the property owner is not liable for their injuries. This rule is not in place to punish trespassers, but it is in place because a property owner cannot always know when a trespasser is on their property. Therefore, the property owner cannot be held responsible for not warning them about safety hazards.

Exceptions to the General Rule

If people trespass on your property regularly, it may be the best practice for the property owner to put up signs around his/her property. The signs will let people known that they are entering private property and are traveling at their own risk.

Another exception to the general rule is if the property owner is engaging in willful and wanton conduct that causes an injury to a trespasser. For example, if you have a piece of land that you do not visit regularly and you notice that there has been a string of robberies, you can not set up a trap with an intention of hurting or killing the trespasser.  In this scenario, the property owner would be liable for the injuries of the trespasser.

When a person trespasses on your property and is injured as a result, it can turn into a very complex case. It is best if you inquire with an experienced premises liability attorney.