RE: [BDSM-LegalIssues] Re: New book -- good but disturbing
> -----Original Message-----
> From: cadenas_sd
> Sent: Thursday, January 03, 2008 8:28 PM
> > The snag is that you, and Wiseman, seem to be operating on the
> assumption
> > that the only scenarios are the extreme ones, and further that the
> > firing/not hiring decisions are formulaic -- Wiseman's "get
> arrested, lose
> > your job, someone else gets arrested" all the course of a day or so.
> >
> > You are not giving the humans in the loop any credit at
> all, despite
> > what Leigha actually wrote, in which she makes it clear that the
> > decisions are based on circumstances.
>
> She also explicitly stated that she actually HAS fired
> somebody for being arrested, and that this is indeed a
> standard policy, any leeway is based only on an "exception"
> basis. She also explicitly defended that policy as "good
> business" and "protect from liability." That is what is
> entirely incompatible with her position in the NCSF.
And you know the circumstances of that firing... how, exactly?
Has it dawned on you to wonder how the business *knew* about the arrest in
the specific circumstances she mentioned?
And, regardless of your repeated assertions, it is *only* "incompatible with
her position with the NCSF" IF the arrest was for reasons associated with
alternative sexuality!
(Mind you, quite how you can claim to determine what is, and is not,
"incompatible with her position" is unclear. Are you on the board? If not,
I'd suggest that your opinion is hardly authoritative.
> Also, I should remind you that "leeway" in this context only
> aggravates the problem.
Nonsense. You *REALLY* haven't thought through what you're demanding.
> Based on "leeway" an employer can
> very well choose to dismiss Lawrence and Garner (of Lawrence
> v. Texas) and the next day hire Mark Foley, former Republican
> Congressman and felony child molester, as a lobbyist.
Yep. Welcome to the United States. In particular, that pesky freedom of
association thing.
However, I find it extraordinarily ironic you're so inconsistent about your
example.
You see, Foley has not been arrested, let alone charged. Lawrence was
convicted (he plead no contest).
So by YOUR OWN proposal, YOU would presumably be fine with Lawrence's
dismissal on the grounds of his conviction, and hiring Foley doesn't raise
any "arrest" issues at all. Hooray!
Leeway not only doesn't aggravate the situation, it is the only protection
against injustice. Without it, you'll end up with situations where needless
harm _will_ be done; for example, if you get your naïve way and arrest
records may not be used, and leeway is not permitted, that inevitably means
that policies such as "anyone convicted will be fired" will be implemented,
and those are no less unjust than the arrest thing that's got you and
Wiseman so riled up!
(e.g. those convicted of civil disobedience because of a politically
motivated protest).
> And to see just how harmful Leigha Fleming's position is:
> imagine that the NCSF decides to assist Lawrence and Garner
> in this situation. The defendant does a little digging, finds
> Leigha's posting here where she said that it was just good
> business practice, and tells the judge "our policy is
> identical to the one that NCSF's own recent Executive
> Director advocates and *explicitly promotes* in her day job".
> Case dismissed.
Umm, perhaps "at will employment" is a concept that's unfamiliar to you?
Would you be happier if someone was fired for attracting negative publicity,
never mind whether or not there was an arrest at the back of it? They can
be, because that's what "at will" means!
Because then the Foley's of the world would be fired *as well* as the
Lawrences! Or those who are named "persons of interest" but aren't
arrested.
As an aside, the scenario you're trying to use as evidence of harm is bogus,
on the grounds that LAWRENCE AND GARNER WERE CONVICTED. The situation
vis-a-vis their arrest record is irrelevant: they were arrested, convicted,
appealed and appealed and finally won at the Supreme Court. This is a very
different scenario, and raises much harder questions that I very much doubt
you could even begin to answer satisfactorily (trivial first example: should
convictions be ignored if they are overturned on what are commonly known as
"technicalities" or procedural grounds, such as inadequate representation at
trial, count, as opposed to those overturned on factual or legal grounds,
such as from DNA evidence or constitutional review?)
What you, and Wiseman, are so aggressively and stubbornly refusing to
recognize is that there's no reason for a company to learn about an arrest
_unless_ it leads to publicity, and, regardless of your dogmatic assertions,
firing someone for attracting bad publicity is impossible to regulate (e.g.
what is the definition of "bad publicity"? How much publicity is the limit?
Is the First Amendment worth the paper it's written on?).
> > > > > Leigha, can you state unequivocally "I believe it is
> > > > > inappropriate
> > > > > for employers to use any arrest for an allegation of a sexual
> > > > > offense to make personnel decisions before a trial has been
> > > > > completed?"
> > > >
> > > > Cadenas, can _you_ state unequivocally "I believe that
> > > > empoyers should
> > > > be required to retain an employee charged with the most
> > > > opprobrius of
> > > > crimes for as long as it takes to fully adjudicate such
> > > > charges no
> > > > matter what publicity may occur"?
> > >
> > > You are building a straw man here. I asked "use any
> > > arrest to make a
> > > decision". How did you arrive here at "required to retain" is a
> > > mystery to me. Nobody asked for that! The point is simply that an
> > > arrest is not evidence of wrongdoing and should not be a
> > > factor in
> > > the decision.
> >
> > Sorry, but there's no straw man: what I described is the inevitable
> > consequence of what you asked for.
>
> Nothing could be further from the truth.
Sadly, you haven't thought through your demand. Sure, I doubt anyone
*likes* the fact that social injustices can occur, but your "solution"
(especially when your bizarre view of leeway is added) is worse than the
problem!
Kindly (try to) explain how the employer would not be obligated to retain
the employee! If, for some unrelated reason such as downsizing, they fired
the accused, is there some magic way in which you can prevent the accused
from accusing the employer of using the arrest as the reason he was
downsized, as opposed to someone else? Because without that magic solution,
the consequences are as I stated.
> > You are explicitly asking for the fact of an arrest for (say)
> > paedophile assault to be excluded from personnel decisions
> > before the
> > trial is completed.
>
> Correct.
Good so far...
> > So the big "mystery to you" is blindingly obvious: because
> you can't
> > use the fact of the arrest for personnel decisions until the trial,
> > you can't use the fact of the arrest as grounds to fire the
> individual
> > until the trial is complete, and assuming that in all other
> > respects
> > the individual is an adequate employee, you are requiring
> > the company
> > to retain the individual.
>
> This is where you are making a leap that nobody called for.
Nope. No leap. It's the inevitable consequence of what you asked for...
How could an employer discharge the accused without leaving themselves
vulnerable to accusations that he was fired because of the arrest?
> Of course if the employer has evidence that the employee
> actually committed an assault, that evidence can be basis of
> a personnel decision.
Well, what sort of evidence would suit you?
How about, say, an indictment?
You know, one of those things which the system uses to determine if there is
sufficient evidence for the case to proceed to trial.
Or how about the proceedings of a preliminary hearing?
In either case, "the people" (including employers) have probable cause to
believe that the crime has been committed!
> I also like the additional restriction
> another poster suggested based on the laws in Canada (?): it
> should only form the basis for a personnel decision if it is
> relevant to the job. For instance, a child molester should
> not be fired from a job as, say, a construction carpenter or roofer.
The publicity that would adhere to the employee and so the employer makes
that one of those things that are easy to ask for, unless you actually have
to pick up the tab for what you're asking for!
> HOWEVER, if all the employer knows is that the employee has
> been arrested for assault, then the employee should indeed be
> retained.
No matter what publicity may occur? That's the "required to retain" bit
that you keep trying to pretend doesn't exist...
But wait! You just got done saying that it would be OK to use evidence that
the employee actually committed the assault, which may be the proximate
reason for the arrest!
You probably wanted to say something like "if the employer has proof", but
of course, employers aren't qualified to measure proof, so you're stuck with
evidence, and the fact of arrest is indeed evidence that the employee
committed the offence. Not, I agree, irrefutable evidence, but it's
evidence none the less.
Congratulations. You've just shot your argument in the foot. Better take
it to the emergency room!
> > > > > Can you state unequivocally that you will work towards
> > > law changes
> > > > > that will outlaw using any arrest record for sexual
> offenses for
> > > > > personnel decisions?
> > > >
> > > > That's just offensive, Cadenas. Why should _anyone_ agree to
> > > > "work towards" anything just because you want them to?
> > >
> > > How about, because that's why the NCSF exists?
> > >
> > > From the NCSF Mission statement:
> > >
> > > >>
> > > The National Coalition for Sexual Freedom is a national
> organization
> > > committed to creating a political, legal, and social
> environment in
> > > the United States that advances equal rights of consenting adults
> > > who practice forms of alternative sexual expression.
> > > <<
> >
> > Is the word "equal" perhaps confusing you?
>
> Jay and I both were originally talking about ALL arrests. The
> only reason for restricting it to arrests for sexual-related
> crime is that other arrests are off topic for both the NCSF's
> and this group.
That's a non-sequitur. Equal means equal, and the situation here is one
where you and Wiseman are ignoring the FACT that Leigha explicitly noted
that the circumstances of the arrest (including, explicitly, the offense and
how recent it was), were a factor.
You've since tried to make out that having such consideration is somehow a
problem (with your "leeway" comment).
> > I suspect there's an assumption that BDSM practitioners and other
> > sexual minorities are somehow significantly more prone to
> arrest than
> > others. If so, I'd _love_ to see some evidence in support of that!
>
> I hope you are right. It would mean that the NCSF has served
> its purpose and is no longer needed. I hope we really get to
> that point some day ;-)
That's a specious conclusion. You seem to have missed the fact that I wrote
SIGNIFICANTLY, and I wrote it for a reason. You also seem to have missed
the fact that Lawrence, as an example you seem fond of, was not a problem of
arrest, but one of conviction. Not to mention the fact that regardless of
the criminal situation, SOCIAL situations desperately require help from an
NCSF-type organization (custody cases, etc.).
[ Snip ]
Malc.
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posted by Annja Sue at
1:42 PM
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