Category Archives: sex crimes

Romeo and Juliet Law: Minnesota Sex Crimes Based On Age

Juliet is “not yet fourteen”

In Shakespeare’s Romeo and Juliet, Lady Capulet said her daughter is “not yet fourteen.”   Juliet was two weeks from her fourteenth birthday.  Ready for marriage, her mother said.  Though we never are told her lover Romeo’s age, it’s apparent that he is also a teen.  Romeo is older, but still of tender chin (without beard).  Today, that would be “statutory rape,” a crime.  Should we make young lovers into criminals?  Should Romeo have to register as a predatory offender in Minnesota?  Or should Minnesota pass a Romeo and Juliet law to  spare them?

Each from families bearing grudges towards each other, the star-crossed lovers’ fate is tragic.  But were they criminals?  Not then, as Juliet’s mother makes clear.

Romeo and Juliet Law

Would prosecutors charge Romeo and Juliet with age-based sex crimes in Minnesota today?  Prosecutions of young people like them are common in juvenile and adult criminal courts in Minnesota.  Should we change the laws in Minnesota to decriminalize young love?  Should foolish love be a crime?

“Oh, what a tangled web we weave; When first we practise to deceive!” (from Marmion; A Tale of Flodden Field, by Sir Walter Scott.)

“Statutory rape”

Age-based sex crimes are crimes based upon some aspect of sex, plus a too-young age.  Common law rape required an element of force, coercion or lack of consent.  A more recent invention, “statutory rape” does not require force or lack of consent, involves quite consensual acts.

But it rests upon a legislative fiat that a person younger than 16, for example, is mentally feeble; incompetent to consent to sexual acts.

See, Minnesota Statutes §609.342, subdivision 1 (a):

“Neither mistake as to the complainant’s age nor consent to the act by the complainant [sic] is a defense.”

The “complainant” usually opposes the prosecution.  Minnesota could make a Romeo and Juliet law so that consensual acts by young people are no longer a crime.

Double standard in Minnesota law

This premise “incompetence to consent” appears false.  After all, the minimum age for competence to be criminally prosecuted in a Minnesota delinquency petition is ten years old. See, Matter of Welfare of S.A.C., 529 N.W.2d 517 (Minn. App. 1995).

Why would the same laws deem a ten-year-old competent intend a criminal act, but consider a thirteen-year-old like Juliet incompetent to intend sex?  A tangled web, indeed.

“O Romeo, Romeo, wherefore art thou Romeo?”

O Romeo, Romeo, wherefore art thou Romeo? Rome and Juliet law, statutory rape in Minnesota

O Romeo, Romeo, wherefore art thou Romeo? Rome and Juliet law, statutory rape in Minnesota

Do we really want to permanently label our Romeos and Juliets “sex criminals,” for the crime of being young lovers?

Do we want them to have to Register as a Predatory Offender for ten years to life?

Many of Minnesota’s “statutory rape” laws contain exceptions for lovers within a range of 24 to 48 months.  But for those outside these exceptions “mistake of age,” they say, is not a defense.  Minnesota could pass a Romeo and Juliet law to end the criminalization of young lovers.

The Party was trying to kill the sex instinct, or, if it could not be killed, then to distort it and dirty it.”   — George Orwell (1984)

Sexting and proximity

These days, we can categorize the growing list of sex crimes based upon proximity: penetration, touch, and non-touch.  When sexual penetration is criminal, it is a more serious crime than touch.  Touch in turn is generally thought to be more serious than non-touch.  Examples of non-touch sex crimes include child pornography or indecent exposure.

21st Century Romeo and Juliet

Before our modern-day Romeo and Juliet became lovers, their flirting included sexting.

Young lovers have been around long before Minnesota criminalized them.  But some non-touch sex crimes are an artifact of recent technology, like smart phones.  Most kids have them these days, and take pictures with them, sometimes naked and arguably sexual images of themselves.

Then they share them with each other over cell phone towers and Wi-Fi connections to the internet.  The images may be on their phones or in the data cloud.  Sexting is a new word.  It merges and abbreviates “sex texting.” Sexting is sending images via text messaging applications.

Minnesota laws have not kept pace with the times.  Should every foolish act be made a crime?  Our laws criminalizing child pornography are now being used to prosecute young people.  Prosecutors are charging young people for taking naked and arguably sexual images of themselves, then sharing them with each other.

Can a picture of yourself be child pornography?

A criminal Complaint or Petition for Adjudication of Delinquency accuses them of Possession or Dissemination of Child Pornography. Minnesota Statutes §617.247.  Such prosecutions violate the young person’s right to freedom of speech and expression under the U.S. Constitution as well as the Minnesota Constitution.

We can do better.  Let’s change the laws to make them less unfair.  Let’s pass a Romeo and Juliet law to spare young people from being made into criminals.

Predatory Offender Registration for juveniles

Can a juvenile be a “predatory offender” due to sexting or being a young lover?

Labeling juveniles “predatory offenders,” requires them to register their whereabouts, vehicles, schools, addresses, and on and on.  And it sends them to prison if they slip up any little part of doing so.  Is that what we really want to do after a juvenile had consensual sex with her beloved, or after sexting?

Rehabilitation vs. Predatory Offender Registration for ten years to life.

Juvenile courts were a result of social reform movements of the late 19th Century.  Rather than criminally prosecute juveniles like adults, we set up a separate juvenile court.  Juvenile courts have a greater focus on rehabilitation for those adjudicated responsible for some “criminal” act.

An important aspect of juvenile courts is that they have traditionally been non-public – confidential.  This protects the juvenile from severe collateral consequences.  It allows the kid to leave youthful mistakes in the past.  In recent years, that has eroded.

In Minnesota, if a prosecutor charges juvenile 16 years or older with a felony, the case is now public. (Almost all “sex crimes” are felonies in Minnesota.)

Juveniles are not safe from predatory offender registration

Current Minnesota statutes contain no juvenile exception for “predatory offender registration.”   See, Minnesota Statutes § 243.166.  This conflicts with the main, rehabilitative purpose of juvenile court and its protection of juveniles from life-long public exposure.

Adjudication is the trigger

How can we save a juvenile from having to register as a sex criminal for ten years or more?  We must get a dismissal of the entire case, an acquittal, or a stay of adjudication.  An adjudication triggers registration, under current law.

Reform Minnesota laws

Criminal lawyers and courts can wrestle with these things.  We can try to save some young people from the jaws of a bad law.  But wouldn’t it be better to change the laws to make them less unfair and less harmful?

Why not enact a Romeo and Juliet law in Minnesota to stop turning young people into criminals?  You don’t have to be Christian to recognize the wisdom in Jesus as Defense Lawyer: The Woman Accused of Adultery.

Until then, your Minnesota criminal defense lawyer can help

Liberty-Lawyer.com logo sm wideThomas C. Gallagher is a Minneapolis criminal lawyer who handles sex crime defense cases and juvenile sex crime delinquency cases in Minnesota, including those involving claims of criminal sexual conduct based on age, and sexting child porn cases.

Jesus as Defense Lawyer: The Woman Accused of Adultery

Do you remember the story about Jesus as defense lawyer for the woman accused of adultery?

What can we learn about criminal law from the story of the Jesus and The Adulterous Woman in John Chapter 8 of the New Testament?

We can learn about what criminal defense lawyers do.  And we can learn about the laws of evidence.

We can learn about a jury’s right and power to sentence.  And we can learn about connecting persuasively with people.  The story of Jesus as defense lawyer is short and entertaining but filled with wisdom.

The narrative

First, the story from John Chapter 8:

But Jesus went to the Mount of Olives.  At dawn He went to the temple complex again, and all the people were coming to Him. He sat down and began to teach them.

Then the scribes and the Pharisees brought a woman caught in adultery, making her stand in the center. “Teacher,” they said to Him, “this woman was caught in the act of committing adultery. In the law Moses commanded us to stone such women. So what do You say?” They asked this to trap Him, in order that they might have evidence to accuse Him.

Jesus stooped down and started writing on the ground with His finger. When they persisted in questioning Him, He stood up and said to them, “The one without sin among you should be the first to throw a stone at her.”

Then He stooped down again and continued writing on the ground. When they heard this, they left one by one, starting with the older men. Only He was left, with the woman in the center. When Jesus stood up, He said to her, “Woman, where are they? Has no one condemned you?”

“No one, Lord,” she answered.

“Neither do I condemn you,” said Jesus. “Go, and from now on do not sin anymore.”

John 8:1-11 HCSB

What do criminal defense lawyers do?

In this story of Jesus as defense lawyer, he shows us what criminal defense lawyers do.

Jesus as defense lawyer for the woman caught in adultery, Pieter Brueghel the Younger's oil on panel version c. 1600

Jesus as defense lawyer for the woman caught in adultery, Pieter Brueghel the Younger’s oil on panel version c. 1600

We defend the human being accused of a crime, to be punished if convicted under the laws.

In this case the crime was adultery.  And if convicted under the laws, the punishment  could be death – death by a group of people throwing stones at you until eventually dead, a death by torture. 

Jesus as defense lawyer

The accused person could testify.  Through much of our legal history the accused was incompetent to testify due to a presumption that they would lie to save themselves.  But even with that right, the accused having an advocate speak for her gives her a better chance of being heard, fairly.

Jesus accepts, advocates for an unpopular person

Here, Jesus speaks for her, and advocates for her life.  He accepts the challenge.  Jesus as defense lawyer, advocates for a socially condemned person.

This is the most important thing a criminal defense lawyer does.  It is our sacred duty, our sacred honor.

The advocate for the accused seeks the outcome desired by the accused.  Anything else would make us not an advocate: unethical or a failed advocate.

Our tool for achieving that outcome the law (including the law of evidence and the law of jury power), and our ability to connect with people persuasively.

The laws of evidence

We can trace today’s laws of evidence back to the time and place of Jesus, and earlier.  Jesus as defense lawyer, knew the laws well.

The laws of Moses required two or more witnesses to the crime before someone could be sentenced to death – a rule against hearsay, a right of confrontation, and a corroboration rule. Deuteronomy 19:15.

One accusing witness was not enough to trigger the death penalty.  Deuteronomy 17:6. Jesus and the crowd were told (“they said to him”) that the woman was reportedly “caught in the act.” Yet there is no witness or witnesses identified nor is there any witness testimony. This made a death penalty illegal under the law.

Gender fairness

Had there been two or more witnesses present to accuse and claim to be witness to the woman’s adultery, the law proscribed the death penalty for both the woman and the man. Deuteronomy 22:22 (“If a man is discovered having sexual relations with another man’s wife, both the man who had sex with the woman and the woman must die.”)

Where is the man? How do we know the man is not any one of the men in the de facto jury?  The prosecutors do not have the man who they claim committed adultery with the woman.

Could this be the meaning of Jesus’ argument?: “The one without sin among you should be the first to throw a stone at her.”  Was that was a challenge to the prosecutors to produce the guilty man, if they could?

Many presume the woman’s guilt in the story.  But read carefully.  It tells what the prosecutors said: “they said to Him, ‘this woman was caught in the act of committing adultery.‘”  That statement is an accusation, just a charge, an unproven claim.  Jesus as defense lawyer, points that out.

The prosecutors fail to produce evidence to prove claim

Presumption of innocence - not enough evidence

Presumption of innocence – not enough evidence

After the accusers all have left, Jesus asks a legal question: “Woman, where are they? Has no one condemned you?”  With no accusers remaining, our attention is drawn to the requirement of eyewitnesses to the crime before guilt could be established and a sentence imposed.

Jesus’ statement: “Neither do I condemn you” can be interpreted to mean that Jesus was no eyewitness to any claimed behavior of the woman.  The presumption of innocence remains unless overcome by evidence of guilt.  An accusation alone is nothing.  Jesus as defense lawyer makes this clear.

One interpretation of the story can be that Jesus gained her acquittal by skillful use of the laws accepted by the jury.

A jury’s right and power to sentence

Was the woman put on trial in the proper manner under the laws at the time?  The contrary appears more likely (not unlike the Trial of Jesus, later).

And yet, we can still use the story to illustrate the jury’s traditional right and power to sentence.

Whether a proper, lawful trial or not – the accusers urged a death sentence to be carried out by the crowd, right there on the spot.

Jesus as defense lawyer, invoked not only the law and its requirements.  He also made a direct appeal to the right, and the power of the de facto jury to refuse to convict her.

Jury lenity and jury nullification

Today we have many terms for this including jury lenity and jury nullification.

Jury lenity is the jury’s right to be more lenient than the law requires.

Jury nullification is the power of the jury to deliver a not-guilty verdict even when it believes the accused guilty of violating the letter of the law.

The modern practice of removing sentencing power from the jury destroys the true jury trial, as this story about Jesus as defense lawyer shows.

Law or equity?

As often is the case, it is difficult to know whether the de facto jury walked away after the argument of Jesus in deference to the laws of evidence or out of compassion.  But when Jesus said: The one without sin among you should be the first to throw a stone at her,” was this not a plea for compassion?

His later statement to her: Go, and from now on do not sin anymore,” implies that perhaps she did sin, but either lawful proof was too weak; or both he, the jury, and the accusers had compassion.  If so, this could have been an appeal to jury nullification or lenity, as well as an appeal to follow the laws of evidence and of a fair trial – either or both.

Criminal defense lawyers can relate to this experience of Jesus as defense lawyer.  We often don’t know.  It is enough that proof beyond a reasonable doubt was lacking.  But we want our clients to avoid future accusations regardless.

Prosecutors attempt to set up Jesus for prosecution

They'll stone you when you're trying to be so good

They’ll stone you when you’re trying to be so good

The ancient Greeks, Aristotle, spoke of ethos, pathos, and logos as the paths of persuasion.  Clearly the ethos of Jesus was also on trial.

“Ethos” is an appeal to ethics – a means of convincing someone of the character or credibility of the persuader – here Jesus.  After all, Jesus had returned there again to teach his gathered students, writing on the ground.

The scribes and the Pharisees then brought a woman before him and his students and accused her of adultery, demanding her death, to trap Him, in order that they might have evidence to accuse Him.

The prosecutors used the poor woman as a pawn in a game designed to destroy the ethos; the credibility of Jesus to his students.  The prosecutors would smear Jesus by association with an accused criminal.  By baiting him to defend her, they hoped to make him complicit in her alleged crime.  Criminal lawyers today understand this tactic used against Jesus as defense lawyer.

Connecting persuasively with people

The description of his behavior shows Jesus’ confidence.  He is a teacher. The prosecutors interrupt as he is writing on the ground while instructing his students.  They address him with respect.  (Ethos goes both directions.)  Jesus listens with respect.

He makes his short argument on her behalf, then resumes writing on the ground quietly, waiting for the people for do the right thing.

We see social mirroring.  We see the invocation of shared values and laws.  He is connecting.  Jesus makes good use of his ethos to persuade.

Using logical argument

“Logos” is an appeal to logic – a way of persuading an audience by reason.

Jesus has pointed out the lack of an eyewitness, the lack of corroboration by two eyewitnesses, the unlawful hearsay accusation, the lack of an identified male accused adulterer (“caught in the act?”), the lack of confrontation of witnesses — all contrary to law.

These are appeals to logic.  Jesus shows that the prosecutors charge is not proven under the law by their evidence — or lack of evidence.

Why should we care?

“Pathos” is an appeal to emotion – a way of convincing an audience of an argument by eliciting an emotional response.  The one without sin among you should be the first to throw a stone at her.

Jesus challenges each listener to publicly declare that he or she is without sin.  He equates being the first to throw a stone at her with being the first to publicly declare being without sin – impossible for an honest person.

Identification

I see you

I see you

This challenge pierces right to the heart of any human being.

It  requires us to shift focus away from the accused woman, and to look inside, to search within ourselves instead.

Jesus correctly asks the jury to question whether the issue is really about them, not the lady accused.

She is not “the other:” they are like her – connected by something in common.

Aspirational

Jesus invites them to be greater than the low identity that the prosecutors invited them to assume.  Liberty and love go hand in hand.

The lessons of this story of Jesus as defense lawyer are memorable.  We can all learn from it, regardless of religious belief.  Criminal defense lawyer can learn much from it, too.

What do you think?

Leave your comment below.

Gallagher-Defense-logoThomas C. Gallagher is a Minneapolis Criminal Lawyer, interested in both history and the law.

If you enjoyed this article, you might like our: The Trial of Jesus: A Criminal Law Perspective, or Romeo and Juliet Law: Minnesota Sex Crimes Based On Age.

Prostitution and Minnesota Law

How can we best understand prostitution law?

Prostitution law involves two important aspects of human existence: sexuality and money.  What is prostitution?  Sex for money.

Sex and money are emotional topics.  Is it any surprise that prostitution is  controversial?  After all, it’s been around longer than money.

Throughout history and across cultures, we have diverse views.

Harm reduction or send a message?

Do we believe that social harms are caused by our sexuality, our money, our prostitution?  Put that way – yes, we do.  We have a social consensus.  These do cause social harms.

Then, what should we do about it?

Can the laws play a role in reducing these harms?  And, what does prostitution law in Minnesota look like?  What about the United States?  Other nations?

MALUM PROHIBITUM

Social Harms of Prostitution Reduced in the Netherlands

Social Harms of Prostitution Reduced in the Netherlands

Criminal laws can divided into malum in se and malum prohibitum.

Malum In Se is literally “Evil in itself.”  A  malum in se crime is naturally evil, like murder and theft.  Common law crimes were generally mala in se.

An malum prohibitum offense, however, is not naturally an evil.  But by legal fiat becomes a crime as a consequence of its being forbidden; like some gambling, drugs.  These are unlawful only because they are forbidden.  

But it’s legal in other states and countries.  Prostitution law in other jurisdictions shows us that this is a malum prohibitum offense.

Does a law forbidding an act make it go away, or reduce social harms? 

Drug prohibition laws show us the answer.  And making alcohol, other drugs, and gambling a crime, increases associated social harms.

We can distinguish between consequences of the act of prostitution and prostitution law.  Many confuse the two.  But they are separate and distinct.

Cause and effect

Which causes the social harms: the act, or the criminal laws?  Let’s list associated social harms:

Coercion.  Sex workers are rarely coerced where it’s legal and regulated. But where unregulated and criminalized, coercion is common.  Human trafficking thrives on criminalization.  The use of drugs, threats, and violence to coerce sex workers is encouraged by criminal prostitution law.

Exploitation of Children.   Where legal and regulated, children and underage people rarely work in the sex industry.  But in Minnesota, as in other places where it is crime, anything goes.  Prostitutes often begin under the age of 18 in Minnesota.

Nuisance.  Is this a “neighborhood livability crime?”  Not much any more.  But to the extent it still is, legal prostitution can be zoned into a red light district. So, Minneapolis has zoned pornography into one part of town.  The move from the streets to the web has reduced this issue.

Corruption.

Prostitution law aggravates social harms

All of these are direct products of criminalization.  The consequences below are related to the act, but aggravated by criminal prostitution law.

Public Health.  Sexual activity can spread diseases, such as AIDS.  But where it is legal, regulation enforces frequent medical examinations, education, and makes police and other help available to resist coercion.  Prostitution laws that make it an unregulated crime, increases associated drug addiction.

Morality.  Many view the act as immoral and unethical, though compared to others, a minor sin.  Of course, many view any sexual activity as a sin.  What about compassionate use for the physically handicapped, medical, etc.?  

Should “the law of man” respect one’s choice to exercise virtue, and leave the domain of saving souls to God’s law?  By binding someone’s hands, do you not prevent them from exercising the free will to be virtuous? 

Which is more immoral, the act of prostitution or criminal prostitution law creating and aggravating these social harms?  Consider our related article: Jesus as Criminal Defense Lawyer: The Woman Accused of Adultery.

Minnesota Laws on Prostitution

Prostitution is unregulated in Minnesota because it is a crime.

It is part of the underground economy.  Minnesota’s criminal prostitution law statutes address both the common and the unusual cases.

Most arrests are customers

By far the most common prosecutions in Minnesota are those against would-be customers.  The Minneapolis police MyFastPass investigation is an example.

But these are generally the result of police sting operations, employing deception.

Police sting deception can go too far, however, creating defenses for the accused.  Though true entrapment defenses are less common, police commonly employ sentencing entrapment by manipulating the situation to up-charge.  A prostitution law attorney can raise these defenses where facts support them.

Traditionally stings began on the streets, often motor vehicles, or in storefronts.

But in recent years, they begin online over the internet, for example on Craigslist, Backpage or Rubmaps.  Prosecutors generally charge these online solicitation sting cases as misdemeanor or gross misdemeanor crimes.

Felony cases

Thomas C. Gallagher, Minnesota Prostitution Law Attorney

Thomas C. Gallagher, Minnesota Prostitution Lawyer

Felony prostitution law crimes in Minnesota are less common.  When prosecutors charge a felony, they allege people under 18 years old, pimps, promoters, and coercion.

Prostitution thrives in an unregulated, underground economy.  This makes investigating cases difficult for prostitution law enforcement (police).

Ironically, legalizing prostitution in Minnesota would make it easier for law enforcement to target the higher priority problems directly (under 18 years old, pimps and promoters, and coercion).

The author, Thomas C Gallagher is a prostitution attorney in Minneapolis who regularly defends people accused of prostitution and solicitation in Minnesota.