A 3-year-old girl was left partially paralyzed after being left in a wrecked vehicle for hours after a 3-vehicle crash. Daniela Flores was in the care of a family friend because her mother has been detained by U.S. Immigration and Customs Enforcement. The family friend reportedly gave the child to a male, Ever Ortega, also the driver of the vehicle, who is purportedly the cause of the accident due to his inability to control his vehicle’s speed.
First responders to the accident didn’t notice the toddler in the back of the car; Flores was found roughly 3 hours later in the floorboard of the backseat, which means she wasn’t wearing a seatbelt or fastened into a child-safety seat. The little girl was unconscious, but breathing. She was rushed to the hospital where she was found to be suffering from brain damage that has ultimately left her partially paralyzed.
It’s unclear yet how the young girl was overlooked. An investigation has been opened, but both responding firefighters and EMS personnel looked inside the vehicle and didn’t see Flores.
Criminal Charges for Ortega
A spokesperson for the City of Odessa says the occupants of all the vehicles involved in the crash were alert after the accident, but for some reason the driver and other passenger repeatedly told officials there were no other passengers inside the vehicle. One firefighter that completed a visual check of the car did notice a child safety seat, but since the driver and other passenger insisted there was no one else inside, first responders didn’t have any reason to believe there were any other passengers in the car.
Why didn’t Ortega or the other passenger in the car inform responders that the Flores was in the back of the car? I’m baffled for an answer and we may not ever get one.
Ortega has been charged with intoxication assault causing serious injury, which is a third-degree felony in Texas. Should he have been charged with more? It will probably depend entirely on what comes out after the investigation as to why he failed to inform responders the toddler was in the vehicle.
Will the Mother Have Any Legal Remedies On Behalf of Her Daughter?
The mother’s immigration issue shouldn’t inhibit possible damages on behalf of the daughter. The first thought is to blame Ortega on a civil basis, but in terms of money damages, it’s more likely the City of Odessa and emergency responders will be targets for a negligence lawsuit.
Although an internal investigation has been opened, according to Andrea Goodson, Public Information Coordinator for the City of Odessa, there’s no indication that emergency responders did anything wrong. Even still, since three city agencies responded to the accident, the Texas Department of Public Safety troopers, the Ector County sheriff’s deputies and the Odessa Fire Rescue, they’re the likely targets.
What Will This Mean for the Toddler Since Her Mother is Here Illegally?
With so much news surrounding the fact that the young girl was overlooked by emergency responders, it shadows a different problem that’s so prevalent today. What happens to the children when their illegal parents are detained by immigration officials?
As of 2011, close to 5,100 children in the U.S. were in foster care because their parents were either detained or deported. The laws surrounding detainees and their children aren’t technically any different than a legal resident and their child—parents have a constitutional right to the care and control of their children and that right isn’t limited to U.S. citizens. Under immigration law, the law assumes immigrant parents will retain custody of their children and either take the child with them or voluntarily leave the child in this country.
For some reason though, this gets murky when parents are detained and/or deported and what happens afterwards isn’t exactly consistent across the board. Sometimes parents’ rights get stripped and the children are put up for adoption, while others are able to obtain temporary visas to stay in the country long enough to fight their child custody cases.
In an effort to thwart separating parents from their children, the Obama administration implemented policies known as the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) that would allow illegal immigrants who have children that are citizens or lawful permanent residents to defer deportation for a limited period of time. Both policies have been put on hold, though, after a federal district court in Texas held the executive orders were unconstitutional and the Supreme Court deadlocked on appeal.
It’s a problem that needs addressed, but hasn’t been solved as of yet. With President-elect Donald Drumpf’s strict stance on immigration policy, it doesn’t appear that it’s going to get better anytime soon.
Authored by Ashley Roncevic, LegalMatch Legal Writer
No one likes speeding tickets, despite their necessity as a way to enforce speed limits. They are expensive, often costing upward of $100, and usually lead to other costs, such as traffic school and increased insurance costs. Additionally, a speeding ticket can lead to points on one’s license and even having one’s license suspended.
One way to avoid having to pay a speeding ticket is to fight the ticket in court. That is the approach that an Iowa teen and his parents chose when the teen received a speeding ticket. An Iowa Department of Transportation (DOT) officer issued a speeding ticket to Peyton Azten after he was caught going 85 miles per hour (mph) in a 55 mph zone. Realizing that his license could be suspended for going more than 25 mph over the speed limit, Mr. Azten chose to contest the ticket by attacking the authority of the DOT officer to issue the ticket.
The Department of Transportation in Iowa was originally only put in charge of providing tickets to commercial drivers. DOT officers were later provided the authority to also issue Operating While Intoxicated (OWI) tickets if they come across anyone who is driving while drunk or under the influence of drugs. However, officers belonging to the DOT are not authorized to issue tickets for other forms of traffic violations, such as broken taillights and speeding. Only peace officers that are a part of the Department of Public Safety are allowed to issue such tickets under Section 80.22 of the Iowa Code. This limitation is reiterated in both a 1948 Iowa Supreme Court decision and a written opinion from Iowa’s attorney general. The judge who tried Mr. Azten’s lawsuit relied on both of the aforementioned analyses of the limitations of DOT officers’ ticketing power when coming to the determination that the DOT officer who gave Mr. Azten a speeding ticket had no legal authority to issue said ticket.
Department of Transportation Continues Issuing Tickets and Faces Another Suit
Rather than appealing the court decision, the Department of Transportation has simply chosen to ignore the ramifications of the court decision and has continued to instruct its officers to issue tickets for any and all traffic violations that they come across while working. This is because the Department of Transportation insists that there is no difference in the training that its officers receive and the training received by the officers of the Department of Public Safety. However, this argument was allegedly raised in defense to Mr. Azten’s claim, and the court did not agree that the similarity in training for both forms of officers was enough to convince the court to reinterpret the applicable law from how it had been previously interpreted back in the 1940s and 1990s.
The Department of Transportation’s insistence that its officers have the authority to issue tickets to noncommercial drivers outside of OWI-related instances has led to the agency facing a new lawsuit from Iowa residents. Four Iowa residents have filed a class action lawsuit seeking an injunction to finally stop DOT officers from issuing any more tickets. They are also seeking the dismissal of all tickets that were issued illegally between August 2014 and August 2016, as well as the return of any funds spent in paying off the illegal tickets.
DOT officers handed out almost 13,000 tickets to noncommercial drivers during this two-year period. With the average Department of Transportation-issued ticket costing $150, the Department of Transportation will be looking at returning nearly $2 million dollars to people who were wrongfully issued tickets by DOT officers if the class action lawsuit is successful. However, the biggest outcome for a class action win would be the prohibition of DOT officers from issuing tickets to noncommercial drivers. Over 6,000 Iowa drivers each year will no longer have to deal with the hassle of receiving and paying off or fighting a ticket.
Given the outcome of Mr. Azten’s lawsuit against the Department of Transportation, it is likely that the lawsuit will be decided in the plaintiffs’ favor. Thus, not only will the Department of Transportation be ordered by the court to stop issuing tickets to noncommercial drivers, it will also be required to return paid ticket fees and not pursue any unpaid ticket fees. However, unlike its response to the outcome of Mr. Azten’s case, the Department of Transportation will likely appeal any granting of an injunction that would stop it from handing out tickets to noncommercial drivers, instead of just ignoring the injunction.
Dealing with a traffic ticket can be a frustrating experience, especially given the wide variety of punishments, from a hefty fee to losing one’s license, which may result from a traffic ticket. The experience can be even more frustrating and complicated if the ticket was wrongfully issued and one chooses to fight the ticket in court, which is why it is important to hire legal representation whenever fighting a ticket. You should talk to a criminal defense lawyer immediately if you have recently been given a traffic ticket and you believe that you should not have been given the ticket, or if you want to avoid facing the maximum punishment that could result from the ticket.
Authored by Kristen Johnson, LegalMatch Legal Writer
What’s the worst defense to a sexual assault claim you’ve ever heard? There’s some pretty crazy defenses out there, while others are used merely as a tactic to negate one pretty simple concept--consent. Conceptually, it’s an easy concept to grasp, but why then is it so hard for our society to convict sexual assailants? RAINN reports that 994 out of every 1,000 rapists walk free.
Say what? Yes, this defense has really been used before. The term sexsomnia was coined by a doctor in Toronto and refers to someone who involuntarily engages in sexual acts while sleeping. This defense was used in 2003 when a woman out of Toronto awoke at a house party to find a stranger having sex with her.
The man claimed he had no idea what he had done until he later, upon waking, went to the bathroom and noticed he was wearing a condom. A doctor testified on the assailant’s behalf, that the condition was aggravated by alcohol and sleep deprivation, and the accused was acquitted of the sexual assault. Does lack of consent on both parties negate the act? I don’t think so.
Using Sexual History Is the Oldest Tactic in the Book
Using a victim’s sexual past is one of the oldest tactics in the books. Thankfully, rape shield laws protect a victim’s sexual history from being used as a defense and limit the type of sexual history that can be introduced as evidence at trial.
For example, most states won’t allow a defendant to introduce evidence of a victim’s sexual history in past consensual relationships. The reason being is that past sexual experiences with a third party have no bearing on the issue of consent for a present sexual encounter with a defendant.
It is, however, harder to limit introduction of such evidence when a past consensual relationship was with the defendant. Evidence of a victim’s conduct with the defendant can go towards the issue of consent when it’s been present in the past. Same rules apply regarding a victim’s sexual reputation. Although evidence of a victim’s reputation for chastity is not admissible, some states do allow evidence pertaining to specific instances of sexual conduct if the victim previously consented to the type of sexual conduct in question.
For example, a defendant can introduce evidence that the victim previously consented to bondage to show that tying the victim up in the alleged rape case was not by use of force. Even so, consent in the past doesn’t equate to consent in the present.
The Victim Isn’t Really a Victim
This is another theme we see used a lot to negate a lack of consent and it can come in many different forms.
Voluntary intoxication typically never works as a defense to a crime, especially not in sexual assault cases, but that doesn’t keep defendants from trying it. The idea is that the perpetrator is too intoxicated to recognize the need to obtain consent from the victim, but we also see it used as a way to attack a victim as well. This argument lends towards the idea that if a victim was intoxicated, it wasn’t rape because the victim likely just regretted their decision to have sex. Although there have been cases where this has happened before, this isn’t a fair presumption to use in all cases involving alcohol.
The problems with these types of defenses stem from the fact that rape is still seen as just a crime of force, rather than a crime of lack of consent. Consent is at the core of every defense that could possibly be used and, because of that, many states have crafted affirmative consent laws. Victims don’t have to just say “no,” but rather consent must be present from both parties. Nevertheless, consent can be a tricky thing to try to prove and that’s precisely why these defenses are used absent evidence of use of force.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
Of course not, right? Or maybe it’s not as simple as that. Donald Trump’s attorney, Michael Cohen, has previously made claims, albeit he’s since apologized for said statements, that by the very definition of rape, one cannot rape their spouse. Not exactly something you expect to hear, especially coming from one of a presidential candidate’s top advisors.
Cohen’s statements came after allegations resurfaced from Trump’s ex-wife, Ivana Trump, who once described an incident between her and Trump as rape. The allegations were made during the couple’s divorce proceedings back in the early 90’s, but with all the media attention surrounding Trump’s controversial comments about women and sexual assault and his bid for presidential candidacy, these allegations came to light again. It was then that Cohen publicly responded to these claims by saying,
“You cannot rape your spouse. And there’s very clear case law.”
Is There Really Case Law to Back Up That Claim?
Historically, yes, but the laws have since changed, making Cohen’s statement false. English common law long held that it was legally impossible for a man to rape his wife. Some states even held specific statutory exemptions in place just for spouses.
It was the idea that marriage constituted permanent consent and it wasn’t until the late 70’s that case law began to suggest a different trend. It was in 1979 when the first conviction for spousal rape was handed down and by 1983, 17 states had removed their laws exempting spouses from the crime of rape.
There’s Still Some Holes in the Law
Fortunately, in 1993, North Carolina became the last state to withdraw their rape exemption for married couples. Even though marital rape is now illegal in all 50 states, unfortunately there are still some holes in the laws that provide room for exceptions (exceptions, not exemptions).
For example, Connecticut law states only husbands or wives raped “by the use of force” can bring charges against their spouse. Idaho, Maryland, Minnesota, Mississippi, Nevada, Ohio, Oklahoma, and South Carolina all follow suit with similar laws. Shockingly, Virginia allows husbands who rape their wives to escape prosecution if they agree to undergo therapy.
The federal government made rape illegal in 1986, but that only applied to cases that took place on publicly-owned land. Really? Rape is any sexual intercourse that’s nonconsensual, so why exactly would the fact of marriage, or taking place on publicly-owned land for that matter, make the idea of consent any different?
Despite That It’s Illegal, It Can Be Harder to Prove and Bias Still Exists
Proving sexual assault is difficult enough, because it’s typically based on circumstantial evidence. When you add in the fact that a couple is married, proving sexual assault can become even more difficult because there’s a bias that some level of consent exists between spouses. That seems to be the obvious reason why some states require rape between spouses to be proved by a use of force.
Forcing someone to have sex is by its very nature, use of force, regardless of whether that “force” is considered physical force that could cause harm under the meaning of the law. This seems like a silly distinction to put into law in the first place. Even so, there are still states that treat sexual assault cases differently for married couples. For example, some states require shorter reporting time periods for spousal assault, while others require the victims to prove the spouse used more force than they would have used had the couple not been married. Say what?
Even jurors still struggle with the idea of convicting a spouse for marital rape. NBC Dateline aired an interview with Lisa Yumi Mitchell, a juror in a spousal rape case, where Mitchell professed the struggle she had with convicting a spouse for rape because she assumes sex is somewhat regular in a marriage. Mitchell, like many others, held a presumptive bias of consent.
It seems our society has a long way to go in this regard, but even with the prejudice surrounding marital rape and the difficulties in proving it, Michael Cohen’s statements that you can’t rape a spouse are inherently false. Consent is consent and when it isn’t there, the sex is always illegal.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
Can exorcism be used as a viable defense to murder? Five members of a Korean family are being charged with murder over the death of a relative during an exorcism ritual. Prosecutors of the German court have stated the family members wanted to expel a “demon” they believed to have possessed their relative.
According to prosecutors, all the accused took part in suffocating the woman. The woman died of asphyxiation as a result of “massive chest compression and violence to her neck.” It’s believed the family members took turns holding and pinning the victim to the ground and kneeing her in the chest in order to “cast out the devils.” They are also alleged to have stuffed a towel in her mouth multiple times in order to stop her from screaming.
The family members claimed that sometime last year, the victim began hitting herself, talking to herself, and became physically aggressive towards her family for unknown reasons, which was what ultimately led to their decision to perform an exorcism. According to German media, the family members being charged with murder are all believed to practice a form of Christianity with shamanist influences.
Cases of Exorcism Aren’t Unheard of in The U.S.
Similar cases have popped up, although infrequently, around the U.S. The first known claim of demonic possession to be used as a method denial of criminal responsibility came in 1981 when Arne Cheyenne Johnson was convicted for first-degree manslaughter for killing his landlord. Johnson killed his landlord during a heated conversation, but claimed that the landlord was possessed and tried to use that as a defense. The judge didn’t buy it, though, and ruled that such a defense could never be proven and, therefore, was not a suitable defense in a court of law.
In 2014, a Maryland mother was charged with killing her two children during an attempted exorcism. Zakieya Avery stabbed both of her children to death (and wounded two other children while attempting the exorcism) because she believed the children were possessed by demons. Although it’s unclear what Avery’s religious beliefs were, Avery never had to stand trial because she ultimately plead guilty to the crimes. A judge found her not criminally responsible and sentenced Avery to a psychiatric hospital rather than prison time.
Insanity is widely accepted as a viable defense and that seems to be the likely route that most defendant’s would take, but I imagine it will be nearly impossible to prove that all five family members in the German trial are legally insane. When it comes down to it, the practice of exorcisms, although often not formally recognized by churches, have deep religious roots—so it boils down to whether or not a person can use religion as a defense to a crime.
Government Leaves Small Window for Religion in Laws
There are some states that leave some wiggle room when it comes to using religion as a defense to certain crimes. You might be thinking there’s supposed to be separation of church and state and, of course, there is, but it can be more convoluted than that. The First Amendment leaves room for the free exercise of religion, so it makes sense that the government would allow religion to be used in certain instances.
For example, Oregon law allows a religious-based defense when the crime is possession of peytote, while Illinois allows an exception to serving alcohol to minors during religious ceremonies. The Supreme Court has held that convictions stemming from charges against an Amish family for not sending their children to school in violation of a state law were a violation of the free exercise clause of the First Amendment.
Bans On Sharia Law Evidence Religion Can’t Be Taken Too Far in Our Justice System
Despite these types of exceptions, there’s a history of keeping religion out of our justice system and that’s been especially evident in recent years.
In 2011, a New Jersey judge refused to grant a woman a protective order from her husband because he defended his actions by claiming that rape and sexual abuse aligned with his Muslim beliefs. The case was ultimately overturned by a higher court, but it incited an outrage within the U.S. which led to legislation across the country that attempted to specifically ban Sharia law.
Although higher courts have ruled banning one specific type of belief, i.e. Sharia, isn’t constitutional, it is legal to prohibit the use of any type of religion as a legal cop-out.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law