RE: [BDSM-LegalIssues] Re: Canadians begin to get it...
> -----Original Message-----
> From: cadenas_sd
> Sent: Thursday, January 10, 2008 2:16 AM
> --- In BDSM-LegalIssues@
> <malc@...> wrote:
> >
> > > -----Original Message-----
> > > From: cadenas_sd
> > > Sent: Wednesday, January 09, 2008 11:18 PM
> >
> > > > But "being arrested" is a property of doing.
> > >
> > > No it is not. You are, again, asserting that being arrested means
> > > being guilty of something.
> >
> > Where, precisely, have I asserted that?
>
> OK. Let's recap.
Hah! Nice try... Restating != recapping.
> You are saying "an arrest is a property of doing"
>
> You are also saying that "an arrest does not mean guilt"
You're stuck trying to force binary logic where it never existed.
The bit you're missing out is by your deceptive "paraphrasing" is that an
arrest doesn't _prove_ guilt, but by every measure there is a probability
that there's a case to be answered, and that the question of guilt or
innocence is thus very much up in the air.
> Therefore, the "doing" you are referring to is not an
> indication of anything, either, unless you directly know what
> the "doing" is and can evaluate it.
How very feeble! You have no basis for inserting that "directly" into the
clause.
There are two distinct points in the process of a case (and I suppose you'll
now whine about how I'm talking about the status quo): the arrest, and the
verdict. At the point of the arrest, you know (by virtue of the arrest)
that the authorities have probable cause to believe the arrested person has
a case to answer. At the point of the verdict, you know whether the
authorities made their case. At no time do you know the actual guilt or
innocence. So, like it or not, the arrest is a big ol' red flag.
Now, you have repeatedly made it clear that it's OK with you provided some
kind of investigation is made as a prelude to firing someone. Yet you
repeatedly refuse to acknowledge that best investigation that one is likely
to be able to make is to call the people who have already been investigating
the case, and ask what they think. And they're extremely unlikely to say
"Gee, the guy we arrested and are holding probably didn't do it". It could
happen, but is it likely? Hardly!
> > What I *have* said, and what has obviously confused you, is
> >that being
> > arrested is evidence of something.
>
> No, that's not what you said.
Don't tell fibs. I wrote that in an e-mail sent at 10:42AM on Jan 8th (in
the 18th paragraph).
> You said it is evidence of
> doing (or rather, "a property of doing" since you keep
> parsing words).
(Ah, parsing words. Many people find that a useful technique when reading.
Perhaps you should try it, Cadenas.)
> In any case, you never established what this
> "doing" (or now even more vaguely, "something") is and how it
> is relevant if it is no indication of guilt.
Ah, but it IS suggestive or indicative of guilt, but NOT proof of it, or
indeed any part of the legal proof.
That's those two definitions of evidence that you so bizarrely think I
invented and had inserted into multiple dictionaries for fun!
> > > If you have evidence of
> > > actual doing, you won't get an argument from me about personnel
> > > decisions.
> >
> > You have evidence that law enforcement has probably cause
> > to believe
> > the doing occurred.
>
> Which is, you have exactly nothing.
Nope. It is _something_. It is evidence that people who investigate crimes
every day think that, and have probable cause to believe that, the arrested
individual committed the wrongdoing.
Naturally, those people may be wrong, but I'd have thought that you, of all
people, would understand that people do get things wrong. Heck, you seem to
do it all the time!
So we're back to your investigation: the employer can choose to believe the
employee, which carries risk, or to believe the authorities, or to hire a
third party and believe them, which carries cost and risk.
Which would you do?
> You don't know what the "doing"
> was, nor whether it is relevant, nor even whether it was just
> a case of being in the wrong place at the wrong time.
And this is where your non-solution collapses: how much money are you going
to mandate employer spend making that determination? Be precise!
Or can't you do that?
Because if you can't, your entire argument is moot: the employer can
legitimately investigate the situation by looking at the arrest record, and
concluding that discharging the employee carries the least risk, because the
designated experts in the field believe the employee has a case to answer.
> Or, more on topic, whether it was just the act of a cop who
> doesn't like what you do sexually.
Oh, yippee! The good old venal cop argument. But these situations
inevitably escalate into publicity issues, which are another kettle of fish
that you HAVE UTTERLY FAILED TO ADDRESS.
> > > Being arrested is a property of something happening to you.
> >
> > ... which something is established at the "probable cause" level.
>
> Others have already debunked that assertion.
Actually, no, they haven't. Like it or not, whatever you want to pretend,
if you get arrested, the cop has probable cause to believe that you've
committed a wrongdoing.
That doesn't mean that the cop won't change his mind later, but at the time
of the arrest, that's the standard required. Period.
> > And the solution to the latter category is that whole pesky thing
> > called "leeway". If you can show that you are one of the (tiny
> > proportion of) cases in the latter category, what employer
> > is going to
> > incur the cost of finding and training a replacement?
>
> Pretty much every employer. Even more so because firing the
> employee undercuts his very opportunity to even mount the
> kind of defense that you demand.
LOL! YOU'RE BACK TO THE "REQUIRED TO RETAIN" THING that you've repeatedly
tried to pretend wasn't behind your thinking.
There is no possible way to interpret your position stated above except that
employers should be mandated to continue to pay the employee's salary until
the employee can prove his innocence.
The only alternative option your naïve position permits is for the employer
to conduct his own investigation (with all the costs and risks associated
with that), naturally while continuing to pay the employee while he does
this.
That's it. That's the Cadenas plan: if employers don't want to wait the
months or years until a case comes to trial, they must finance their own
internal investigation.
Now, the Cadenas plan is probably extremely good if you're the employee, but
Cadenas cannot justify quite why the employer and all the other employees
who have managed not to get arrested should fork out the cash.
> It may have escaped you, but employers today treat employees
> as disposable property.
Over generalize much? Oh, yeah, we've already noticed that...
> Maybe you are independently wealthy and don't have to work
> for a living. Else I'm sure you would not be talking about
> such things as if they were just some abstract event.
And quite how many cases of innocents individuals being discharged for being
arrested do you know of? Oh, that's right, none.
So the situation seems pretty damn abstract to me. Sure, it _could_
theoretically happen, but does it? Sure doesn't seem like it, and Tatu even
provided some fairly expert insight into what _really_ happens, not what you
and Wiseman think happens.
> > But the burden has to be on you, the employee (or potential
> > employee) to provide that proof, not on someone else (e.g. the
> > employer).
>
> The burden should be the same as on anybody else: when a
> misfortune happens, not to aggravate it.
Ah, it appears that you actually live on Planet Whoo-Whoo.
What you actually want, under the Cadenas plan, is to mandate a situation
where when a misfortune happens, _everyone_ should get stuck with it, which
is hardly fair in any situation, and grossly unfair where the employee is
actually guilty!
For more, just go and read Travis' comments. If you want a safety net, why
not simply leave the employer out of it, and create a safety net out of the
same cloth as the "if you cannot afford an attorney, one will be appointed
for you" thing. I.e. if you get arrested and lose your job, then the state
will pay you a salary until the situation is resolved.
But don't drag additional parties into the mix, just because you seem to
believe they have excess cash.
Malc.
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posted by Annja Sue at
3:28 AM
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