Eat your heart out Charles Bronson and Clint Eastwood. Ya'll ain't got nothing on this dude:
Translation, anyone?

Whenever you go into any kind of store nowadays you see black or silver bubbles on the ceiling. For those of you who don't know, inside those bubbles are cameras thru which store security watches potential shoplifters (and employees). I say "for those of you who don't know" because there are obviously people too dumb to realize that their every move is being watched as they stuff merchandise in their coats and down their pants. I've seen any number of tapes of this in cases I've been involved in. Here's a typical video of the type which I found on YouTube (two young punks almost too dumb to breathe filmed trying to steal everything that isn't nailed down):


Now here's a guy who knows he's being watched by the camera and who decided to play a prank on some people he used to work with (don't try this at home kiddies):

You know you've hit the big time when you become a primary source for Wikipedia (citation #6).

When I became a lawyer I don't recall being told that I lost my 1st Amendment right to freedom of speech. However, it appears that the Virginia Bar has decided that all lawyers in Virginia have forfeited that right when it comes to blogging about matters that are already a matter of public record.

To be specific, the VSB has ruled that Horace Hunter, a Virginia lawyer in Richmond, must take all posts from his blog down which refer to that which has happened to his clients in open court and is in the public record, unless he has permission from each client. These things can be written about by every other citizen in the United States, just not Horace. Why not? Because he is the client's attorney.

This is part of a 2 issue argument which Horace has been having with the Bar. First, they wanted him to put a disclaimer on his blog which stated that the results he was talking about were not guarantees of similar results in other cases. On this, as much as I respect Horace's stand on principle, I agree with the Bar. I stated as much back in May when I first discussed this.

However, the second issue seems to have morphed in to a constitution breaker: the Bar insists that Horace has been shorn of his 1st Amendment right to free speech by becoming a lawyer and taking on a client. To be fair, this is a possible reading of the ethics rule which the Bar is enforcing against Horace:

Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

So, if the Bar can show in each case that the information written about by Horace was embarrassing or detrimental to the individual written about, then it might have a case (on a post by post basis). The implications in the Virginia Lawyers Weekly article seems to be that there weren't any demonstrable detrimental affect and that any embarrassment from the posts seems to have been caused by the Bar in the process of its investigation (which is an interesting lack of clean hands on the Bar's part). Nevertheless, the Bar can fall back on the potentialities and subjective standards written into the ethics rule. "Would be" and "would be likely to be" are incredibly broad turns of phrase. If Ethics Rule 1.6 trumps the Constitution the Bar is free to interpret that language any way it wants to and Horace just has to live with it (and the rest of us do too).

So, what's the Constitution say about all of this? Well, the pertinent part is the 1st Amendment, as imposed on the States through the 14th Amendment. I'm not anywhere near being an expert on this area of the law, but I'm going to offer up some fairly basic analysis through the lens of what I remember from ConLaw back at W&L.

First of all let's establish a three facts. 1) The Virginia State Bar is a State actor. Its own website proclaims it "An agency of the Supreme Court of Virginia." Of course, the Supreme Court of Virginia is a part of the Commonwealth's government per Article VI of the Virginia Constitution. 2) The important State interest is to protect confidential communications between an accused and her attorney. 3) Talking about what happens in court involves all sorts of political speech. After all, this is the place where the laws of the legislature, enforcement by the executive, and interpretation by the courts all meet. It is, as the saying goes, where the rubber meets the road. I'm not sure its political nature makes much difference in determining whether the government can quash it, but if it does it should make it harder for a government actor to do so.

Now, let's run this through the two tests I recall from law school.

The first test I recall is strict scrutiny. Under this test, a government actor seeking to halt free expression must have 1) a compelling government interest to halt the free expression which is enforced by a policy 2) narrowly tailored to achieve the governmental goal and which is 3) the least restrictive means of achieving that goal.

The compelling governmental interest here is to promote the operation of the judicial system by insuring that communications between a defendant and his attorney remain confidential. The government has no valid interest in keeping the activities which occur in open court from becoming public. In fact, this has been held so important that the US Supreme Court reversed a case when a person could not watch voir dire because there were so many potential jurors that there was no space for the person in the courtroom. Presley v. Georgia , JAN10, USSC No. 09-5270.

Keeping in mind the compelling governmental interest of protecting confidential communication between clients and attorneys, the next question becomes, is forbidding an attorney from writing about what happens in open court with his client narrowly tailored to protect confidential communication between the client and the attorney. It seems not. This is not a requirement that the attorney not speak of things told in confidence. This is a requirement that the attorney not speak of things done in an arena that is mandated to be open. US Const. Amend. VI.

As well, forbidding an attorney from discussing matters concerning his client which occurred in open court and are in the court's open record is not the least restrictive way of protecting confidential communications between the client and his attorney. The least restrictive way is to simply forbid the attorney from revealing confidential communications between himself and his client.

Beyond the strict scrutiny test, governmental actors can also emplace time, place, and manner regulations. Whether these are valid depends on a four part test. 1) Is the regulation content neutral? 2) Does the government have a significant interest? 3) Does it leave ample alternatives? 4) Is the regulation narrowly tailored?

In this case, the regulation is not content neutral. It forbids specific actors from discussing specific matters. Attorneys cannot discuss their clients' cases as they took place in the courtroom.

The government does have a significant interest in protecting the privacy of confidential communication between a client and his attorney.

There are no alternatives allowed here. If Horace cannot write about these cases on his blog, he cannot write about them in the newspaper or talk about them on TV or even get on a soap box in the park and speak of them to passers-by.

The regulation is not narrowly tailored. It forbids much communication which is outside the realm of the private client-attorney communication which it has an interest in protecting and forbids it in all places.

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Look, I never published the names of any clients on this blog. In fact, I usually masked where things happened and changed facts around in an attempt to talk about what was interesting about a case without attaching the post to a particular client. In fact, you'll notice that I seldom use actual place names anymore (usually substituting mythical Pitcairn County / City). I seldom name other attorney or judges in here and when I do I usually do it in order to praise them (I'd say always, but somebody would find some post I've forgotten from 7 years ago and make me a liar).

This is good policy. However, requiring it is not good constitutional law. I may not like the way Horace publishes matters on his blog. I may even think it counterproductive. However, there is a big difference between speech which is distasteful and/or counterproductive and speech which is so contrary to a necessary public/governmental interest that it should be suppressed by a government actor.

I wish Horace luck in his further defense of his right to free speech.

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[addendum] Scott, from Simple Justice, has written a post addressing this and sent me a link to the article in the Richmond Times Dispatch. Scott agrees with the Bar. Respectfully, Scott is wrong. Not identifying one's clients and talking about what happened to them in open court shows respect, a sense of fair play, common decency, and is a good behavioral policy. It is not a compelling governmental interest such that free speech should be suppressed.

And, for anyone thinking that this isn't about free speech concerning matters already entirely in the public domain (not confidences between a client and her attorney), here are the pertinent quotes from the Richmond Times Dispatch:

Can newspapers report on criminal trials? she asked. "Yes, absolutely, they can. Can (Hunter) then go back and report on his own cases? No, he cannot — absolutely not. Not without his client's consent."

"It doesn't matter if the information (he) reports is already in the public domain."

The Bar is, by its own counsel, admitting that it is suppressing the speech of lawyers concerning matters in the public domain. It can't be much clearer than that.

Is the Bar's position good behavioral policy? Yes. Is it good constitutional policy? Absolutely not. A governmental agency should never be able to suppress speech solely on the grounds that it disfavors that speech.

Gotta love transcripts:

Mr. Lammers: "Your Honor, the defendant, John Smith, is monster-ably a danger to the citizens of Pitcairn County.

However, I will say that the transcript is equal opportunity. Just a little later there was this from the defense attorney's argument:

Defense Attorney: "Judge, even people who are convicted of actual burglaries don't get that kind of sentence. This is only an attempt, an incurred offense."

In Virginia a Commonwealth Attorney is elected in each county or city. This is roughly the equivalent of a District Attorney or State Attorney in other States (except we're in a Commonwealth, so we're cooler). The duties of a Commonwealth Attorney, and his deputies, are laid out in Virginia Code § 15.2-1627(B):

The attorney for the Commonwealth and assistant attorney for the Commonwealth shall be a part of the department of law enforcement of the county or city in which he is elected or appointed, and shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both such confinement and fine. He shall enforce all forfeitures, and carry out all duties imposed upon him by § 2.2-3126. He may enforce the provisions of subsection D of § 18.2-268.3.

So, the basic job of a Commonwealth Attorney is to prosecute felonies. He is also tasked by law with doing several civil actions (previously discussed here). However, it is entirely discretionary whether a Commonwealth Attorney's office will handle misdemeanors. In fact, the staffing of a Commonwealth Attorney's office is based entirely on the felony caseload; there is absolutely no credit given for handling misdemeanors (see Compensation Board Staffing Criteria). So, what happens to all those misdemeanors the Commonwealth Attorney is not being paid to prosecute?

Well, some Commonwealth Attorneys are kind enough to pick up these cases anyway. In other localities the county or city, recognizing the burden put on the Commonwealth's Office, will provide extra money to the office to compensate for the extra work. This can either come in the form of extra pay for each assistant or paying a particular assistant to handle the misdemeanors. Another option is for the locality to hire its own prosecutor.

Localities which hire their own misdemeanor prosecutors can be counties, cities, or towns (towns incorporate in Virginia, but don't have their own Commonwealth Attorney). This prosecutor is either the county attorney or the city or town attorney (the attorneys who usually do their civil work). However, in order for the locality's attorney to do this work the Commonwealth Attorney must first approve them and there are some differences in the cases they are allowed to handle.

§ 15.2-1542(B) The county attorney may prosecute violations of the Uniform Statewide Building Code, the Statewide Fire Prevention Code and all other ordinances as may be agreed upon with the attorney for the Commonwealth. Such attorney shall be accountable to the governing body in the performance of his duties.

15.2-1542(C) City and town attorneys, if so authorized by their local governing bodies, and with the concurrence of the attorney for the Commonwealth for the locality, may prosecute criminal cases charging either the violation of city or town ordinances, or the commission of misdemeanors within the city or town, notwithstanding the provisions of § 15.2-1627.

So, attorneys for counties as well as cities and towns can, with the approval of the Commonwealth Attorney, prosecute ordinances. Ordinances are local laws which can be put into place by localities with the permission of Virginia's General Assembly (Virginia is a strong Dillon Rule State).

The strange difference is that city and town attorneys can prosecute misdemeanors which occur within their localities while county attorneys are not allowed to do so. A misdemeanor does not have to be a local law the General Assembly has allowed the locality to enact. A misdemeanor is any offense in Virginia in which the punishment is 12 months or less. So, a city or town attorney can prosecute ordinances and state laws while a county attorney can only prosecute ordinances.

The next question becomes, how do any of these attorneys get permission to prosecute from the Commonwealth Attorney? My best opinion is that the Commonwealth should send a blanket statement to the local court stating that she will not have her office prosecuting misdemeanors from the town of Pitcairn and that she agrees that for the next 12 months the town attorney of Pitcairn can prosecute any and all misdemeanors, whether by ordinance or under State law, which occur within the boundaries of the town of Pitcairn. Without such a statement, the defendant in any case being prosecuted by a count, city or town attorney would be able to object (after the first witness has been called and jeopardy has attached) that there has been no approval by the Commonwealth Attorney for the local attorney to prosecute his client.

It would be an interesting argument. I don't know if it would often work (I suspect the officer could handle his own case in most minor misdemeanors without the attorney), but it would make for an interesting argument.

Rape by fraud is not a new crime. However, in the past it carried a different name: Seduction. It also had at least one extra condition.

To begin with, under the common law seduction was not a crime. 57 Corpus Juris: Seduction 150. However, apparently a great number of states found this intolerable under certain circumstances and passed statutes making it into one.


While the actual crime varied from state to state (depending on how the statute was written), there were basically three elements to seduction. First, the victim had to be female. Second, the woman must have been of chaste character when convinced to have sex. Chaste character basically meant that the woman had never voluntarily had sex out of wedlock. Seduction 162. The third element of the crime of seduction was the use of "artifice,deception, flattery, promise, or like inducement" in order to gain the confidence of the woman in order to get her to submit to the seducer. Seduction 155. The deception which seems to have been most common? A promise to marry her.

So, why does this crime no longer exist in any statutory scheme? I believe the primary reason for this is fairly obvious: the changing role and perceptions of women in society. At a primordial level, the crime of seduction is based in a patriarchal worldview in which women are seen as a form of property. Under this system, the value of that property was perceived to change drastically after it has been despoiled. To state this in a more crass analogy, we all know that a new car loses a great deal of its value once it's driven off the lot. Basically, the crime of seduction reduced the value of the woman to both the seller (her father) and to any potential buyers (husbands) .

Of course, this kind of primitive thought has been non-viable for quite some time in the U.S. However, it does not seem like the courts and legislatures were ready to abandon the framework entirely. Instead, the gloss put on seduction was to shift the parties so that the seller became the woman herself rather than her father. Thus, she has an interest in preserving the value in herself of her chastity so that she could offer it as a boon only available to the eventual buyer (husband). The cases which probably indicate this gloss most clearly are those declaring that a divorced woman was just as chaste as a woman who had never been married.

In the end, all of this went away. The worldview that saw a woman's primary purpose in life as getting married and one of her major bargaining chips toward that goal as her chastity seems consigned to the ash heap of history. With it went the crime of seduction. In its stead, the general common law rule of caveat emptor has reasserted itself (for both sexes). This is probably best expressed in People v. Evans, 1975,379 N.Y.S.2d 912:

Seduction, on the other hand, may be freely indulged in by both sexes. It involves allurement, enticement, or persuasion, to overcome initial unwillingness or resistance. Its ends may be achieved by fair means or foul, but seduction eschews the crudities of force and threats.

Of course, Scott pointed out to me in the previous post that the law in New York changed because of this case, but it's still a valid explanation of the state of the common law for those of us in states which have not adopted some sort of rape by lie statute.

The videos yesterday made the claim that in the United States there are laws in some States similar to the rape by deceit charge in Israel. I did a bit of hunting to see if this was true.

To begin, I looked in Virginia. The Virginia rape statute has the basic three conditions which traditionally make up rape

§ 18.2-61. Rape.

A. If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape.

No rape by fraud there.

I dug around in some other States and found rape by fraud in Tennessee.

39-13-503. Rape.

(a) Rape is unlawful sexual penetration of a victim by the defendant or of the defendant by a victim accompanied by any of the following circumstances:

. . . . .

(4) The sexual penetration is accomplished by fraud.

I also found a limited version of this in California.

261. (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

. . . . .

(5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.

New York has a statute which seems to follow the same legal model.

§ 130.25 Rape in the third degree.
A person is guilty of rape in the third degree when:
. . . . .
3. He or she engages in sexual intercourse with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent.

To address these in reverse order of presentation, the New York law seems to be limited (defined down) by the courts.

The legislation was designed to address the so-called date rape or acquaintance rape situations where there might be consent to various acts leading up to the sexual act, but at the time of the act, the victim clearly says no or otherwise expresses a lack of consent, and a reasonable person in the actor's situation would understand that the victim was expressing a lack of consent

People v. Cummings, 2011, 916 N.Y.S.2d 432.

So, it doesn't seem to cover rape by fraud.

The California statute seems to be a remnant from a legal thread which used to be part of the law in many States. I saw references to former laws in Arizona and North Carolina which had the same thing. Apparently, there was a big problem in times gone by with men trying to convince women that they were their husbands in order to have sex with them.

The Tennessee statute is the one which is the most straight forward as a rape by fraud statute. However, there only seem to be two cases where the appellate courts address this. In each, the type of fraud is similar to that which is in the the older legal thread. In each, the lie told was such that the person having sex thought they were having sex with an entirely different physical person than the one with whom they were actually having sex with. In State v. Mitchell, 1999, C.C.A. No. 01C01-9612-CR-00502, a man convinced women he was their boyfriend and that he had a fantasy that they would have sex while she was blindfolded. In State v. Brigman, 2003, C.C.A. No. M2002-00461-CCA-R3-CD, a man convinced young men that if they were blindfolded a woman would come and perform oral sex on the young male, but did it himself. Both of these seem to indicate that conviction for rape by fraud is a difficult case to prosecute which would only occur in incredibly unusual situations.

Last week I was wandering around the web when I ran across a meme from about a year ago in which people went nuts over a rape conviction in Israel. The reason everyone was up in arms was because the circumstances were such that most people would not think of it as rape.

A woman and man met. She was Isreali and he said he was too. They had sex. Later, she found out that he was actually Palestinian (and married). Based on his lie about his ethnicity, he was convicted of rape.

As you might imagine, the Internet was filled with cries of outrage and disdain. Here are three YT videos commenting on this conviction. The first is outrage, the second makes fun of the decision, and the third attempts to justify it.