And Baby Makes Three...

Can we put aside partisanship, rancor and silly giggling long enough to wish the Weiner family well as the pregnancy news updates the "scandal"?

Sure hope everyone who knows better currently counseling the couple to divorce understands that children are often better being raised by two parents present in the home, even two imperfect parents.

Plus, there's something about that biological link -- this is your Dad, for better or worse -- that might help a child at times, even/especially in the awkward adolescent phase, having the person who shares your genetics and makeup (baby might turn out to be a scrawny, immature boy himself), advising you on how to make the best of a situation and your physical lot in life. Maybe the father will share what he's learned, what his personal values are*, and what mistakes he made -- privately -- to help his offspring coming up.

Anyway, it's a bit of happy news amidst the recent unpleasantries. And perhaps, who knows?, the child was conceived after one of those exciting online episodes, when the father clicked off the computer and went to his wife to share private moments, in real life. (Like a marital aid. -- Are we going to have the "my marriage is like this, thus so must be everyone else's" crowd weighing in now on whether sex toys, and other definitions of pornography are acceptable in the marital bed too? Want to make it front-page news if somebody hacks into private email records -- or it's leaked -- that so-and-so Congressman has been purchasing sexx toys online? Think of the slipperly slope now people... And hey, are lubrication products ok'd in as medical needs, or will the morality police decide that's not kosher in the old-fashioned "natural" marital relationships, either. Slip, Slip, Slippery Slope...)

Speaking of slippery slopes,
and to give you and example of legally relevant sexx news in the headlines, UCLA Law Professor Eugene Volokh tells us of an Ohio case between that "involved a 12-year-old boy, D.B., who had sex with an 11-year-old boy, M.G. D.B. was charged both with forcible rape of M.G. and with statutory rape, which criminalizes any sex with someone who 'is less than thirteen years of age.' (A different statute makes it a crime for an over-18-year-old to have sex with a 13-to-16-year-old, so don’t think that the general age of consent in Ohio is 13.) The juvenile court judge convicted D.B. of the statutory rape, but not of the forcible rape, gave him probation and a suspended sentence, and ordered him 'to attend counseling and group therapy.'”

Legal ramifications? (since that legal blog isn't known to run stories just to titillate readers and commenters):

"The Ohio Supreme Court basically held that this discretionary approach to statutory rape, under which two people would routinely be guilty but the prosecutor would choose which one to prosecute, violates the federal Due Process Clause and Equal Protection Clause," Volokh writes.
...
"If this reasoning is accepted throughout the country, the results would be sweeping. First, many states outlaw all sex — without exceptions for people close in age — not just with under-13-year-olds, but with under-16-year-olds or, in the case of California, under-18-year-olds. (Sex among 15-to-17-year-olds is a misdemeanor, in theory for both parties.) All those statutory rape laws would be cast into doubt," he opines.

Basically, what you have here is a judge overriding prosecutorial discretion. A force from outside deciding that the two must be treated equally based on age, rather than allowing somebody more well versed in the facts to decide if one child was the aggressor more than another, needing what help can be mandated by the courts.

Do we really want to remove this standard of deference to local discretion? Think about it.
Volokh again:

{P}rosecutorial discretion (and police discretion, which I take it would be no more permissible under the court’s opinion) has, rightly or wrongly, long been a part of the American legal system. Speeding laws are routinely enforced against some but not others, since there isn’t the manpower to enforce them against everyone. In conspiracy cases, prosecutors often choose whom to prosecute for the more serious crimes and whom to prosecute for the less serious crimes, even though all the conspirators are formally guilty of all the crimes. And these choices are often based on the prosecutors’ judgments about who more deserves punishment — similar to judgments in statutory rape cases about who more deserves punishment — as well as about who is more likely to provide helpful evidence.

And the list could go on. I acknowledge that the enforcement of the statutory rape law is more necessarily linked to prosecutorial discretion than the enforcement of some other laws. But the general point remains: prosecutorial discretion, including discretion based on prosecutorial judgment about who is more morally at fault (even when everyone is legally at fault) is a routine and institutionalized aspect of the enforcement of many laws.

States could preserve some of their ability to criminalize nonforcible underage sex by setting up clear rules about which of the parties will be prosecuted, for instance (1) the older party, (2) the party who received rather than provided genital stimulation (assuming all the conduct was oral or anal sex, and all or most of it in the relationship went one way), (3) the party that could be proven to have provided some supposedly undue inducement for the act, even if the inducement wouldn’t suffice to make the act illegal among adults, or even (4) the boy, in heterosexual contexts (see Michael M. v. Superior Court (1981)). But this would deprive prosecutors of the power to decide, based on the circumstances of each case as they see them, which party is actually the more culpable one. Perhaps prosecutors should indeed lack this power, for reasons of equality or the “rule of laws, not of men”; but it is at least sometimes a useful power, and a power that they have long been understood as having.

Law Professor Volokh thinks the U.S. Supreme Court might want to take on this one:

Because of the scope of this ruling, because it is such a departure from the traditional view of prosecutorial power, and because it is done by a state supreme court in the name of the U.S. Constitution and not just of the state constitution, I’m inclined to think that there’s a substantial probability that the U.S. Supreme Court will hear the case. And if it does, I think most of the Justices will vote to reverse.

The Equal Protection Clause analysis in this case strikes me as easy to reverse on the facts of this case (and recall that this was an as-applied challenge, focusing on the facts of this case). The prosecutor apparently thought that D.B. and M.G. were very differently situated — he thought D.B. forced M.G. into sex, and even though the judge disagreed, the prosecutor’s belief on this point should suffice to justify the difference in treatment.

And as to the Due Process Clause, I think the U.S. Supreme Court Justices will conclude that the law contemplates only what is the traditional practice of prosecutorial discretion, that the “process” that defendants are “due” has to be determined in light of this traditional practice, and that such a traditionally accepted feature of our system therefore does not violate the Due Process Clause. That, at least, is my prediction, worth every penny you paid for it; and keep in mind that all the Justices of the Ohio Supreme Court — which, by my count, includes six Republicans and one Democrat — disagree with my analysis on this.

Something to think about anyway (and you won't necessarily have to take a cold-shower brainbath afterward, either!)

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* As we, a society, turn away from religious institutions inculcating our moral values, I wonder if secular society -- especially via paid media, old and new, profitting off private gossip -- really is the best replacement in instilling values? Seems that what many pundits today are doing is using their own personal soapboxes as pulpits to inject their personal values into somebody else's business. And remember how much we chafe when professional moral clergy tries to shift their values onto the society as a whole?

I don't agree with these calculations, but I've observed them: Married trumps single (straight or gay). Married with children trumps married childless.

Too many people been playing the "Middle Aged Married" (so-listen-to-me-especially) card, that they probably don't even realize they've overstepped their place. Slippery slope there, slippery slope...


ADDED: Oh dear me. The new NYT guest columnist seems to think that young women, college educated, need to be protected from seeing a picture of a man's underpants. Nevermind she hadn't complained before Mr. Breitbart started offering up cash for private online conversations. Nevermind she hasn't released the full transcripts of their chat content.

Nope, this new young whippersnapper just knows that a lady, a young lady, was sent a picture that presumably he wouldn't want his own adult, college-educated daughter to receive. And that's presumably enough for him to get into the lady-protecting business himself...

I really don't see how this qualifies as action between two consenting adults. And the notion that only prudes and people interested in sex-shaming would see it otherwise is deeply problematic. As I said in comments, I find it rather insupportable that if John Boener (sic) did this a bunch of us would be talking about privacy rights.

There's nothing about being a liberal that says I have to defend a dude's right to randomly disseminate unsolicited pictures of his dick (sic). That just ain't (sic)** my fight.

No more Anthony Weiner guys. Forgive the overload.

Silly fellas. In their condescension, they just don't understand how some women play them to advance under the "lady card", nevermind the qualified women who refuse to do so, wanting to advance on their own merits and skills, not some need for special protection or quota-filling.

Trust me: there's no special gender that needs special protection in the war of the sexxin'. Adults? College educated? Chatting voluntarily and not complaining until somebody drags some money into the mix?

Huma Abedin is no more a "victim" here than Ms. Cordoba. And no, one's life doesn't end when you receive a gray underpants photo in the in-box. More like, if you don't like it, you hit delete and don't communicate anymore with the sender. Not life ending. Not publicized. Not until the New Media money begins to flow, and the outrage accelerates accordingly do such women suddenly need "protection".

If we want equality, ladies, we have to compete equally. Not play the victim card in full force.

Thanks, Mr. Coates. But no thanks. Not like that.

* I think the profanity, misspellings, and grammar issues are supposed to lend to the "black-man street cred" he brings to the mix... Word?