Saturday, August 14, 2004
Toe sucking,
and the Indiana battery law, problems with.
This is a rather important post, although it starts out friviolously.
This morning, a myspace friend wanted a duck, so naturally i went to heidi bond's site,
and did not find the duck-ordering link, but did find a discussion of dutch toe-sucking.
The subject under discussion here is the drafting and interpretation of legislation, and finding the intermediate level of specificity.
On the one hand, if legislation is too precise, there can be gaps - it seems the dutch claim they have no law against toe sucking, and the toe-sucking bandit , er, gets off.
On the other hand, legislation that is too general destricts liberty in ways that run up against lawrence v. texas issues. html://laws.findlaw.com/us/000/02-102.html
A rule that says "people may never touch each other" is too broad. Some kind of a rule against battery is desireable in order to protect people from each other.
The clerk* sets out the california and texas standards.
This post discusses the Indiana statute. This is not a hypothetical discussion. I'm working with an indianapolis lawyer. His client has been charged with battery, on some facts about horseplay on a playground. I have sent him a roughly drafted memo arguing that the Indiana statute is unconstitutionally vague, vagueness that must be cured through a limiting construction, or it runs into Lawrence-type problems.
The lawyer i'm working with is a very good criminal lawyer who doesn't do a lot of constitutional law, while i'm a not very good constitutional lawyer who hasn't done any criminal law, and we are having some issues in communication. I would welcome the blogosphere's thoughts on this.
gtbear at gmail dot com.
The indiana statute, 35-42, reads
1. Battery. I.C. 35-42-2-1. The crime of Battery is defined as knowingly or intentionally touching someone in a rude, insolent, or angry manner, and is a Class B misdemeanor.
If the battery results in bodily injury to another person, it is a Class A misdemeanor. If the battery involving bodily injury is committed by an adult against a child less than 14 years of age, it is a Class D felony.
http://www.violenceresource.org/statute.htm
Note that consent is not a defense, and key terms, rude or insolent or angry, are undefined.
(bodily injury is defined, in case law and statute, as no bodily injury at all, merely a fleeting sensation of pain or annoyance, but that issue has had rulings. The constitutional challenge would be a case of first impression.)
Is the statute constitutional, or not? Is there a narrowing construction that would save it, if so what? Bonus points for analysis under the indiana constitution e.g. due course of law.
Cordially, the arbitrary aardvark.
*It is clear that, if the allegations panned out, Schwarzenegger would be guilty of the tort of battery under California law. California defines battery as "an intentional and offensive touching of a person who has not consented to the touching." Conte v. Girard Orthopedic Surgeons Med. Group, Inc., 132 Cal. Rptr. 2d 855, 859 (Cal. Ct. App. 2003). ... "A person commits an assault if he 'intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.'" Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 134 (Tex. App.—Houston [1st Dist.] 1999, no pet. h.). (quoting Tex. Pen. Code § 22.01(a)(3)). Curmudeonly Clerk.
update: when i first was admitted to the indiana bar, my certificates were signed by dwayne brown, a clerk of the courts who resigned in disgrace, over a toe-sucking incident.
and the Indiana battery law, problems with.
This is a rather important post, although it starts out friviolously.
This morning, a myspace friend wanted a duck, so naturally i went to heidi bond's site,
and did not find the duck-ordering link, but did find a discussion of dutch toe-sucking.
The subject under discussion here is the drafting and interpretation of legislation, and finding the intermediate level of specificity.
On the one hand, if legislation is too precise, there can be gaps - it seems the dutch claim they have no law against toe sucking, and the toe-sucking bandit , er, gets off.
On the other hand, legislation that is too general destricts liberty in ways that run up against lawrence v. texas issues. html://laws.findlaw.com/us/000/02-102.html
A rule that says "people may never touch each other" is too broad. Some kind of a rule against battery is desireable in order to protect people from each other.
The clerk* sets out the california and texas standards.
This post discusses the Indiana statute. This is not a hypothetical discussion. I'm working with an indianapolis lawyer. His client has been charged with battery, on some facts about horseplay on a playground. I have sent him a roughly drafted memo arguing that the Indiana statute is unconstitutionally vague, vagueness that must be cured through a limiting construction, or it runs into Lawrence-type problems.
The lawyer i'm working with is a very good criminal lawyer who doesn't do a lot of constitutional law, while i'm a not very good constitutional lawyer who hasn't done any criminal law, and we are having some issues in communication. I would welcome the blogosphere's thoughts on this.
gtbear at gmail dot com.
The indiana statute, 35-42, reads
1. Battery. I.C. 35-42-2-1. The crime of Battery is defined as knowingly or intentionally touching someone in a rude, insolent, or angry manner, and is a Class B misdemeanor.
If the battery results in bodily injury to another person, it is a Class A misdemeanor. If the battery involving bodily injury is committed by an adult against a child less than 14 years of age, it is a Class D felony.
http://www.violenceresource.org/statute.htm
Note that consent is not a defense, and key terms, rude or insolent or angry, are undefined.
(bodily injury is defined, in case law and statute, as no bodily injury at all, merely a fleeting sensation of pain or annoyance, but that issue has had rulings. The constitutional challenge would be a case of first impression.)
Is the statute constitutional, or not? Is there a narrowing construction that would save it, if so what? Bonus points for analysis under the indiana constitution e.g. due course of law.
Cordially, the arbitrary aardvark.
*It is clear that, if the allegations panned out, Schwarzenegger would be guilty of the tort of battery under California law. California defines battery as "an intentional and offensive touching of a person who has not consented to the touching." Conte v. Girard Orthopedic Surgeons Med. Group, Inc., 132 Cal. Rptr. 2d 855, 859 (Cal. Ct. App. 2003). ... "A person commits an assault if he 'intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.'" Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 134 (Tex. App.—Houston [1st Dist.] 1999, no pet. h.). (quoting Tex. Pen. Code § 22.01(a)(3)). Curmudeonly Clerk.
update: when i first was admitted to the indiana bar, my certificates were signed by dwayne brown, a clerk of the courts who resigned in disgrace, over a toe-sucking incident.
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