RE: [BDSM-LegalIssues] Re: Vicki's codification attempt.
At 02:36 AM 1/11/2008, Malcolm Weir wrote:
>No, it isn't a long discussion at all. Simpson was found not guilty of the
>crime of murder (criminal trial), but culpable for their deaths (civil
>trial). One sentence is not long!
One sentence statement of the problem. Application of civil
"preponderance of evidence standard" to criminal acts is perposterous.
>But it points out a significant flaw in your solution. We can state
>authoritatively that he was responsible yet he was acquitted. I.e. at the
>preponderance of evidence standard, he killed them.
there is that flaw again. 51% vote by Jury on what might be the
preponderance of evidence standard does not make for good Criminal Justice.
>The flaw is that we know he did the deed, yet by your approach we can't act
>on that knowledge.
How exactly do we know he did the deed? Any witnesses that actually lived?
>And while Simpson was a very high profile case, there are many many more
>where the facts of the matter aren't really in question, but a conviction
>cannot be obtained.
I seem to remember from my civics and history classes that one of the
principles of our (US) way of Justice is that it was far better to let 10
guilty people go free then to convict even 1 innocent.
As such things like beyond a reasonable doubt and not allowing double jeopardy
A jury of ones peers were all part of this grand scheme.
> > >And I presume that any information that comes to light
> > before and during the
> > >trial *may* be used as a reason to discharge?
Based on the examples given I have no problem with that. But then again
only you and I have put any attempt at thought into codifying a law. I am
sure others will have opinions.
> >What about situations where the accused is acquitted, but due to the
> > >negative publicity he is unable to do his job as effectively
> > as before?
> >
> > Lay him or her off "with cause" not cause they were arrested
> > but because they can not perform their duties.
>
>Re-read the question. The issue is not that they can't perform their
>duties, but they can't perform them as well.
Performance reviews are common in companies. use them.
>But have another problem: what if the employer is involved in the criminal
>trial as, say, a victim? If the guy gets acquitted, is it justice if the
>organization pressing charges has to retain the guy?
Why would it not be just that the innocent (acquitted) be able to stay?
(Other than that Freedom of Association thing that you and I at least
agree on :)
>Still, it hardly seems fair that an employer has been forced to keep a
>position open, maybe for years, only to discover that accused is no longer
>capable of doing the job!
Resolved under performance of duties.
> And if you read ahead, you'll get the rest of the
>unfairness.
By the way I note that in all of this you have chosen to protect one
group (employer) from unfairness but pretty much tossed another group
(There are and have been several groups being discussed in this thread)
to the preverbal wolves. I.E. the arrested and released (due in part to the
fact for that scenario that they are completely factually innocent)
You interested at all in arguing for that group?
> > > For
> > >example, the child care person acquitted of rape but who is no longer
> > >trusted by the _customers_ of the employer?
> >
> > Good question. back to an earlier comment of mine about
> > teaching folk.
>
>That's not exactly a solution to the problem, though. Well, it's not even
>the _start_ of a solution...
Education is not only the start of a solution it is almost always the most
effective solution requiring the least amount of government interference.
------------
"The Revolution was effected before the War commenced. The Revolution
was in the minds and hearts of the people; a change in their
religious sentiments of their duties and obligations ... This radical
change in the principles, opinions, sentiments, and affections of the
people, was the real American Revolution."
-- John Adams, (1735-1826) Founding Father, 2nd US President, February 13, 1818
------------
Martin Luther King didn't run candidates and elect them to office.
He, and the brave men and women who suffered under the fire hoses and
the biting dogs, changed minds through the example of their courage
and peaceful suffering.
Gandhi didn't elect a slate of candidates to vote the British out of
India. Ghandi changed minds, including the minds of the British, and
then the British left.
The Berlin Wall, and the communist governments of eastern Europe,
didn't fall because new legislatures were elected to make them fall.
The change happened because minds changed, including the minds of
soldiers who decided to no longer obey orders.
( Quotes from another mail list related to downsizdc.org )
------------
>The rest of the unfairness, from the above, is that there are plenty of
>situations where it is clear from a very early age that the accused won't be
>trusted by your customers... But you're prohibiting the company from acting
>until the trial is complete
The proposal directly allows the company to act at the time of
arrest. (See unpaid leave)
>Of course, the other part of the problem is that your solution imposes costs
>on the employer even in the cases where the employee is convicted, by
>mandating that the job remain available in case he returns.
Actually I did not. the proposal allowed the company to end the association
at conviction. If it didnt' then I was in error for it should have.
> If he gets
>convicted, the employer has been stuck in limbo for (sometimes) several
>years, which is hardly fair.
Think of it as equal unfairness. The employee has been stuck in the
same limbo.
> > >Then what do you propose to do if, say, a layoff happens a
> > >month after the
> > >acquittal, and the company decides that the accused's job no
> > >longer exists;
> > >how do you protect against specious lawsuits by the accused
> > >alleging that
> > >his job should have been protected?
>
> > How do you do that now? Jobs are eliminated all the time.
> > Protected classes
> > of people get laid off. That part of the system seems to work just
> > fine. (unless it is you who is laid off.
>
>The problem is that the numbers complicate the matter substantially. In a
>large organization, during a layoff, the chances are that multiple people
>who are members of the protected class get impacted. But with this
>storm-in-a-
>hard on the employer to demonstrate that the layoff was fair, and easier on
>the accused to unfairly gain protection that other employees don't have.
> > How is the problem of job elimination handled by maternity
> > leave? What if it
> > was eliminated BEFORE the aquittal?
>
>FMLA: 12 weeks. Criminal trial: 5+ years.
so set a limit of 12 weeks. that would have interesting impact on speedy trial
and that bargaining away part you mentioned early on.
> > >How about organizations with morals clauses?
> >
> > Not covered.
>
>I.e. the consequence of your proposal may be an increase in the number of
>employers insisting on morals clauses. I *really* think that's a Very Bad
>Idea...
Why? Then we can move for a law to protect morals. :)
>I mean, you've argued extensively about the applicable standards of evidence
>in criminal cases; with a morals clause, all that's moot!
And that is different from how it is now in what way? Only that
fewer companies
have morals clauses atm?
> > > Or organizations that demand
> > >personal financial stability:
> > > if arrested, the accused may be in a much less
> > >satisfactory financial state by the time he is cleared,
> > which fact may make
> > >him ineligible for his old job (this one does exist, by the way).
> >
> > Which companies are these?
>
>Not that it's relevant, but some jobs in the finance sector require clean
>credit.
>
>(And anything needing a clearance, so I'm told...)
>
> > > > For the employer if they retain an employee that has been
> > > > cleared/aquitted and something bad happens (See insurance
> > > > list of fears) then the employer is specifically protected
> > > > from suit based on the arrest/cleared/
> > >
> > >That's one of the things that is much easier said than done.
> > >Crafting a
> > >policy that protects against lawsuits without infringing
> > with everyone's
> > >right to sue is... difficult.
> >
> > Yes it is :) As we have demonstrated here there are MANY
> > diverging opinions
> > on how to handle even the simplest case of possible injustice.
>
>Hence my conclusion: your scheme is unworkable.
>
>(And that's without the point that the number of individuals impacted by
>this sort of thing is obviously not large!)
>
>And then you can't do _anything_ about the hiring problem, where the arrest
>is noted but not cited as the reason the guy doesn't get the job (even if it
>is a significant part of the reason).
>
>Which -- in my view -- makes any effort to implement your scheme for _that_
>rather pointless.
>
> > > Particularly since you'll never be able to
> > >protect against accusations of negligence in doing whatever
> > it is that
> > >you're supposed to do to protect everyone.
> > >
> > >[ Snip ]
> > >
> > > > There you go. Codified with protections for everyone but the
> > > > ex-con. That would be another long discussion :)
> > >
> > >It's a good attempt, but for the reasons shown, I don't think it is
> > >workable.
> >
> > Thank you. It may or may not be workable but has all the same
> > kinds of problems that other laws such as maternity leave and not
> > being allowed to fire or not hire based on race, age, etc.
>
>Yes, it does have those kinds of problems, but significantly aggravated (12
>weeks vs several years) and with some of its own that none of your examples
>have, such as the "Simpson problem": you know there's wrongdoing, but
>there's no conviction.
I still want to know how I know theres wrongdoing BY THE ACCUSED.
there was wrongdoing by someone cause there were dead bodies. :)
>And while it's statistically possible to show discrimination based on race
>or gender, it's much significantly harder to show anything based on the
>_much_ smaller numbers likely to be involved.
>
> > >And at the end of the day it doesn't really address the Freedom of
> > >Association thing. It basically makes a special class out
> > >of people who
> > >have been arrested, which is rather a dodgy proposition.
> >
> > As I mentioned earlier in this thread since we have lots of
> > special classes
> > that ALL impact the Freedom of Association thing why not have
> > one or 3 more?
>
>For the same reason that you don't casually erode the Freedom of Speech
>thing: it's a slipper slope...
>
> > Well other then the obvious fact that it DOES impact the Freedom of
> > Association
> > thing. Something that you and I seem to be in agreement about. :)
>
>Don't get me wrong: if there were some way that one could create an
>effective approach that would ensure social justice and fairness, then an
>effort to implement it would be worthwhile. But I think it's clear that
>there is no way one can craft something that is simultaneously effective and
>fair and just,
In this we also agree. That is why I would push for education which should
increase the chances of "leeway" mentioned earlier in this thread rather than
laws that by their very nature cause significant problems as discussed in this
thread.
-Vicki-
[Non-text portions of this message have been removed]
Post message: BDSM-LegalIssues@onelist.com
Subscribe: BDSM-LegalIssues-subscribe@onelist.com
Unsubscribe: BDSM-LegalIssues-unsubscribe@onelist.com
List owner: BDSM-LegalIssues-owner@onelist.com
Shortcut URL to this page:
http://www.onelist.com/community/BDSM-LegalIssues
Earn your degree in as few as 2 years - Advance your career with an AS, BS, MS degree - College-Finder.net.
Change settings via the Web (Yahoo! ID required)
Change settings via email: Switch delivery to Daily Digest | Switch format to Traditional
Visit Your Group | Yahoo! Groups Terms of Use | Unsubscribe
__,_._,___
posted by Annja Sue at
4:37 AM
0 Comments:
Post a Comment
Subscribe to Post Comments [Atom]
<< Home