On March 24, 2016, the Oklahoma Court of Criminal Appeals declared that a person who forced to give oral sex while heavily intoxicated cannot claim that they were sodomized against their will.
The facts of the case are simple. The Defendant forced himself upon his intoxicated and unconscious 16 year old victim, resulting in forcible sodomy. Although the defendant and the victim knew one another prior to the sodomy, that didn't stop him. The prosecutors in the case charged the Defendant with the crime of forcible sodomy, but the Judges found him to be not guilty under the statute.
So what is the statute? What is the Judges’ reasoning? This is clearly problematic, but why?
Under the Oklahoma Statute, Forcible Sodomy is Very Specific.
In this case, the defendant and the victim did not fall under any other requirement except for the second requirement. So the Court only focused on the second requirement and applied it specifically.
Since the Statute Does Not Specify “Intoxication”, the Defendant Did Not Violate the Statute.
The Court unanimously voted 7-0, that the Defendant did not violate the statute. The statute only covers when consent could not be given due to mental illness or unsound mind. In this case the victim was intoxicated, but intoxication (no matter how severe) is not considered to be a mental illness or reflect unsound mind.
There is a separate law for protecting victims who are too drunk to consent to sex. But that law only specifies penetrative sex and not oral sex. The Court had two options: expand the interpretation of the statute or refuse to expand the meaning and take it as read. Here, the Court decided not to expand the meaning and apply the statute as it is written.
The law has a significant blind spot: persons 16 years or older who do not have a mental illness or unsound mind, who were sexually assaulted without force or threat of force. In this case, it was a 16 year old girl who was forced to engage in oral sex while she was too drunk to resist. Since the Court decided not to expand the law, there is now a large class of people who can be sexual assaulted without consequence.
What Does This Mean for the State of Oklahoma?
If this decision becomes binding, it could let assailants walk away from their crime due to the large gap of coverage. It is clear that there is a large gap in the statute. Prosecutors and victims will need to face this argument many times before the law changes.
Now, the law can only change through the legislative branch and that may take months or years before it can change. Until then, prosecutors may find their legal arguments frustrated by such a literal interpretation of the law. Defendants who may have otherwise been found guilty, could end up walking away from the charge of forcible sodomy.
But above all, the victims will suffer the most.
When the Law Fails the Victims It Is Built to Protect
In the United States, 44% of victims of sexual assault or rape are under the age of 18. Most sexual assaults or rapes are committed by a person that the victim knew. Only 32% of sexual assaults are reported to the police, meaning 98% of rapists will never spend a day in jail or prison.
The numbers make it clear. The majority of all cases of sexual assault or rape are never reported; victims tend to know their assailants. Half of victims are under the age of 18.
The United States claims to be dedicated to protecting the downtrodden and those that cannot defend themselves. Across the nation, women and children are protected, cherished, and cared for. But so often, the law fails them when it comes to protecting them from the dangers and risks of the world around them.
This case is a clear example of how the law has failed our women and children and that statutory law surrounding sex crimes need to be reformed to truly protect them.
Authored by Janice Lim, LegalMatch Legal Writer
North Dakota, among 11 other states, makes it a criminal offense to refuse to submit to a warrantless chemical test when arrested for driving under the influence. The case before the Supreme Court stems from a traffic stop where Daniel Birchfield was pulled over for driving under the influence. Birchfield failed a breathalyzer, was arrested, and then asked to submit to a chemical test for which he refused. Although Birchfield was not ultimately charged with driving under the influence, he was charged with refusal. Failing to submit to a chemical test is a misdemeanor in North Dakota.
Birchfield’s argument rests on the fact that because warrants are a prerequisite to a search, the current law requiring a warrantless search violates the 4th Amendment. North Dakota’s argument rested on implied consent laws, arguing that by driving a vehicle, you agree to submit to a chemical test of your breath, blood, or urine to determine blood alcohol level. Higher courts agreed with North Dakota and denied Birchfield’s motion to dismiss his case.
Are Warrantless Chemical Tests Legal?
The Justices raised some good questions that reflect they may lean towards requiring warrants for chemical tests. Besides the above arguments, let’s take a look at a few issues that were discussed in front of the Court.
Arguments in favor of keeping the law allowing criminal charges for a refusal:
Here’s a few reasons argued in favor of a finding these type of laws unconstitutional:
The argument that because a driver suffers from civil penalties, so a driver can equally suffer criminal penalties seems a bit off. Civil and criminal penalties are two totally different ends of the spectrum and that’s definitely not a good enough reason to excuse a constitutional warrant requirement. Despite the arguments made in favor of keeping the law, there seems to be some evidence the Court may lean towards the latter arguments in favor of traditional 4th Amendment protection.
Warrantless Chemical Searches May Be a Lost Cause, but Breath Tests Are Still Questioned
In the 2013 Missouri v. Mcneely case, the Supreme Court ruled, “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” This implies warrantless blood tests may already be a lost cause and, ultimately, the argument before the court ended on the question of whether a breath test, even if only minimally intrusive, should still require a warrant.
Safety of public roadways is a compelling enough interest and probably the strongest argument in favor of keeping the law, but, as evidenced above with their stance on a blanket exigency for blood tests, I don’t anticipate they’ll find any different for breath tests.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
Microsoft has filed a lawsuit against the U.S. government claiming that their ability to force the company to keep quiet about government requests to search cloud data is unconstitutional. According to Microsoft, customers have the right to know when the government obtains a warrant to read their emails and that they have a right to inform their customers of that warrant.
That’s right folks, the government can obtain warrants to read your emails and, better yet, they can force whatever company holding that information to remain silent about it. How can they do this, you ask?
The ECPA Protects Your Data…Or At Least Parts of It
The Electronic Communications Privacy Act (ECPA) protects electronic information, like email or other data, from government surveillance without a warrant. But there’s room for exceptions. When the law was originally created, the Internet was a fairly new idea and the way the ECPA was drafted was perfectly okay for the time. Users could download emails off a provider’s server onto their personal computer and the ECPA would protect the data while it was in route to its’ final destination (your personal computer).
Once the data was downloaded on a personal computer, all the normal protections from governmental searches and seizures would apply and the government would have strict warrant requirements in order to seize any emails off a personal computer. However, digital times have changed and now after being read or opened, email data remains on the server, or rather in the “cloud.” The ECPA doesn’t specifically protect data in the cloud and, thus, there in lies the problem.
Data that Remains In the Cloud Is At Risk
If data has been in storage for more than 180 days, the government can obtain a warrant or subpoena for the information as long as they provide prior notice to compel such a disclosure. Here’s the kicker—the government can issue a gag order refraining the provider from disclosing the government is requesting access to your information. They can do so purely on the grounds that it would harm the government’s investigation.
The length of the gag order can be for any period of time, usually indefinite, if the government has “reason to believe” that adverse consequences would result without secrecy. This is where Microsoft’s lawsuit comes into play. In the past 18 months alone, Federal courts have issued close to 2,600 gag orders to Microsoft, silencing them from informing their consumers about the warrants.
Violations of 1st and 4th Amendment Constitutional Protections in Question
Under the current law, secret warrants are legal, but that’s only because the law is outdated. Microsoft alleges that under the 1st Amendment freedom of speech, they have a right to be transparent with their customers. Further, under 4th Amendment reasonable search and seizure protections, Microsoft alleges that “reasonable” includes the right for customers to know when the government searches or seizes their property. I think they have some pretty good arguments.
It’s well established by case law that “reasonable” does include a right to know when the government searches or seizes property. Even when the government may conduct searches without prior notice due to exigent circumstances, the government cannot delay notice indefinitely as they can under the ECPA.
In my opinion, the question ultimately hinges on whether or not consumers have an expectation of privacy in data stored on the cloud and I think they do. Just as the government has to provide notice when seeking a warrant for possession of property in a person’s physical control, data stored on the cloud should not be any different. Times are changing and, just as with anything else, laws need to be updated in order to align with the ever-increasing age of technology.
The Supreme Court has already previously agreed with this notion. In Kyllo v. United States, the Supreme Court decided the use of thermal-imaging devices to detect heat emanating from private homes was unconstitutional because they felt technology shouldn’t “erode the privacy guaranteed by the Fourth Amendment.” SCOTUS has already established that privacy rights should stay protected even with the update of new technology.
Then the question becomes, does the risk of adverse consequences resulting from informing consumers about the warrants outweigh the 1st and 4th amendment protections? In some cases, yes, but in the majority of cases, the answer should be no. The law needs to be updated to include heavier burdens for the government to carry when seeking these warrants and provide strict deadline requirements when situations do require those secrecy orders.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
The FBI has been embroiled in a fierce legal battle with tech giant Apple over whether the company needs to include a security backdoor to allow the FBI access a smartphone. However, this was not just any smartphone. This was the phone of one of the deceased perpetrators of the San Bernardino shootings, a violent attack that left 14 dead and 22 injured.
With the owner of the phone dead and unable to provide a password, the FBI sought and received a court order demanding that Apple write software allowing them to bypass the phone’s “auto-destruct” feature. This is a feature on iPhones which wipes information on the phone after ten failed attempts. Normally, with only a four-digit password, there are a fairly limited number of password possibilities and the FBI could just brute force the phone open.
Apple refused the FBI, pointing out the archaic nature of the law that the order was granted under, the concerning precedent if law enforcement is allowed to force companies to write software against their will, as well as the privacy implications of creating a security backdoor would render the phones of all their users vulnerable.
After a wildly publicized battle in the courts between the FBI and Apple over this issue, the FBI suddenly dropped the case. They announced that they had unlocked the iPhone on their own—with the help of a private hacking business.
The FBI Has Ways of Making Your Phone Talk
Unable to hack the phone themselves, or easily make Apple comply with their wishes, the FBI turned to the open market to solve their problem. While it was originally reported that the FBI turned to an Israeli company to fix their phone headaches, it is now known that the FBI turned to a domestic company of “grey-hat” hackers.
Many have compared the world of computer hacking to the Wild West, and the lingo has reflected this. “White-hat” hackers search for security vulnerabilities on behalf of tech companies to allow the companies to fix the problem before it’s exploited. “Black-hat” hackers are just in it for malicious fun and profit. “Grey-hat” hackers are in between, hacking software and hardware without permission but with the intent of selling the vulnerability back to the victim—or in this case selling to the government.
The grey-hat hackers hired by the FBI used what is known as a “zero-day” hack to exploit a vulnerability in either the iPhone 5c or iOS 9 to bypass the “auto-destruct” feature. A “zero-day” is called such because normally hackers exploit the vulnerability repeatedly in one day before it is discovered and patched. However, Apple can’t stop that zero-day from coming because now that the FBI knows the vulnerability they refuse to spill the beans.
The Vulnerabilities Equities Process
Apple has asked the FBI to reveal the hack to them so they can fix it but the FBI has not been forthcoming. So the question is, does the FBI need to reveal Apple’s vulnerability to them?
The government finding and using security vulnerabilities is a common practice--so much so that there is policy in place to deal with whether the government should disclose. This policy is called the Vulnerabilities Equities Process (VEP).
The unredacted version of the VEP reveals the process by which the government decides whether to disclose the hacks and vulnerabilities it discovers. When the U.S. Government or somebody working with the government finds a security vulnerability in any government or commercial software or hardware, they report it. The National Security Agency (NSA) is then notified of the vulnerability and must report it to a (heavily redacted) list of government agencies and officials by the end of the day they are notified.
Once notified, these groups are then called upon to produce experts to argue whether the vulnerability should either be revealed or concealed. These recommendations are given to an interagency Equities Review Board (ERB) to consider. While the permanent members of the ERB are redacted, interested government agencies may appoint a representative to the ERB for any single decision.
Should the FBI Have to Disclose the Hack?
The VEP is not a legal obligation to disclose and totally up to the discretion of the government. Normally, the very existence of a vulnerability existing can be classified under the VEP. In this case, the case is so publicized that everybody knows about Apple’s vulnerability.
It’s unclear how serious of a vulnerability exists, a vulnerability requiring a physical phone is much less exploitable than one that can be implemented remotely. There is also a legal tension between the government revealing trade secret security vulnerabilities that they learn from hacking companies trying to sell these vulnerabilities and the dangers concealing those vulnerabilities creates. A world where the government can force companies to reveal trade secrets that they are trying to sell has its own disturbing implications.
While the simplest solution seems to be the FBI privately disclosing the hack to Apple, this has its own issues. If the FBI discloses the hack, it loses all value, damaging the hackers the FBI worked with. This may affect the willingness of hackers to work with law enforcement in the future. However, this difficulty seems minor when compared to allowing a security vulnerability to exist which has the potential to compromise the privacy and financial security of millions of iPhone users.
Where Will Apple Go From Here
As it stands, Apple is forced to play a game of wait and see. Apple has stated that they won’t sue the government to reveal the flaw. However, it’s questionable whether they have legal recourse allowing them to sue in the first place.
White House cybersecurity coordinator Michael Daniels says the VEP has a bias towards disclosure. However, statements from the FBI sound like they’re dragging their feet. FBI Director James Conway was quoted saying that “if the government shares data on the flaws with Apple, “they’re going to fix it and then we’re back where we started.”
Daniels later stated the FBI was considering whether to disclose. However, this still isn’t encouraging. A security vulnerability in millions of iPhones could be up for sale to whoever is willing to pay the price and Apple won’t be able to even begin patching the hole until the FBI decides they’re done with it.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
The Massachusetts Supreme Judicial Court heard the appeal of a lower court judge’s refusal to dismiss Michelle Carter’s manslaughter charges from her boyfriend’s 2014 death.
Carter exchanged several text messages with her boyfriend, Conrad Roy, in the days leading up to his death, which prosecutors believe directly led to his decision to kill himself by carbon monoxide poisoning. Prosecutors say Carter, who was 17 at the time, encouraged Roy to commit suicide by instructing him several times to “just do it”.
While 39 states have laws against encouraging or assisting suicide, Massachusetts is not one of them. Prosecutors ultimately charged Carter with involuntary manslaughter.
Carter’s indictment reads, “Carter assisted Conrad’s suicide by counseling him to overcome his doubts…Her counsel took the form of positive direction, where she told him he was ‘strong’ enough to execute the suicide plan and would be happy once he was dead.” In addition to urging Roy not to delay the act any longer, Carter even provided her boyfriend with alternative methods of producing carbon monoxide when it became clear that his truck’s diesel engine alone would not work in his plan to commit suicide.
Carter’s defense attorney asked the court to dismiss the manslaughter charges on the basis that Carter didn’t commit an actual act and that her text messages were protected under the First Amendment right to freedom of speech. The state argued otherwise and the lower court agreed. You can read the State’s response here, which includes several detailed text messages between Carter and Roy that are definitely worth reading if you want to know the details of the case.
What Qualifies As Assisting Suicide?
There isn’t one specific definition, as laws vary from state to state. Generally, assisted suicide is committed with the aide of another person and is normally defined as knowingly or intentionally providing a person with the knowledge or means, or both, required to commit suicide. It gets a lot trickier when it comes to defining what constitutes encouragement.
In State of Minnesota v. Melchert-Dinkel, the defendant created a false Internet identity, claiming to be a female nurse who intended to kill herself, and actively encouraged 2 depressed and suicidal people to kill themselves in front of a webcam, presumably so the defendant could watch the deaths. The Minnesota Supreme Court invalidated the State’s law, in part, ruling that “advising” or “encouraging” suicide was protected by the First Amendment freedom of speech.
Encouraging may mean something different than assisting suicide. Take physician-assisted suicide, or death by dignity laws, for example. While a physician may assist an ill patient in committing suicide, that doesn’t necessarily mean they were encouraging the patient to commit suicide.
Where Do You Draw the Line?
Should all speech be protected under the First Amendment? Certainly not. Precedent tells us speech such as obscenity, child pornography, and “fighting words” are not protected speech, but that’s not enough to define a clear-cut answer to the question of whether text messages encouraging suicide are enough for manslaughter.
Prosecutors in Carter’s case reasoned that, “Where a defendant is charged with threatening a victim, she is not charged with ‘merely using offensive speech,’ but for ‘conduct that placed the victim in reasonable apprehension of imminent serious physical harm.” Just as fighting words are not protected when they provoke a violation reaction, Carter’s insistent instruction and encouragement crossed a line.
Further, the State urges Carter engaged in a course of wanton or reckless conduct that caused Roy to commit suicide. After getting scared and hesitant on his decision to commit suicide, Roy got out of the car under the effects of carbon monoxide poisoning, and, according to prosecutors, Carter instructed Roy to “get back in the car.” It was this action the State considers a “verbal act instrumental in the commission of the crime of manslaughter.”
What Steps Should Massachusetts Take Going Forward?
The Supreme Judicial Court heard arguments for both sides and has a tough decision, currently under advisement, in front of them. After being asked by Justice Robert J. Cordy where the line was between speech and manslaughter, prosecuting attorney Shoshana Stern cited the phone call where Carter told Roy, who was hesitant and scared, to get back in the truck and finish the job.
While speech should be protected, it shouldn’t necessarily be a hard-lined rule when it comes to the topic of encouraging or assisting suicide. Maybe the answer is to look to the actual words that were spoken on a case-by-case basis. Remember Justice Potter Stewart’s famous line when trying to define pornography? “I know it when I see it…”
Consider someone saying, “I think you should commit suicide” versus someone merely discussing their moral acceptance to someone’s wish to end their life. Carter had1,000 opportunities to talk Roy out of committing suicide or getting him some help; instead, she gave him alternatives and talked him out of his hesitations—she essentially handed him a loaded a gun and all but pulled the trigger.
While some have ruled on this issue and some already have laws on the books, it’s not an area that’s been widely litigated, which means Massachusetts decision could spark others to follow suit.
If you know someone with suicidal thoughts, visit the National Suicide Prevention Lifeline or call 1 (800) 273-8255.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law