In UK violent rape will carry tougher penalties.

In England and Wales policymakers propose a fifteen year minimum jail time for conviction of violent rape crimes. The Guardian U.K.  reports that the Sentencing Council responsible for research, revision, and establishment of punitive sentencing has made its first recommendation. The occurrence of sex crimes has swelled in the last decade and the sentencing committee spent two years reviewing penalties concerning sexual offenses. The outcome of years of work appears to address the most heinous cases of rape-instances where severe violence is employed. The committee should be applauded for taking up the issue of sex crimes, which is an unusual but much needed course of action.

Lawmakers in the United States should should follow the lead of our common law allies. Crimes against the most vulnerable members of the population should be prosecuted aggressively and carry heavy penalties. If rape is not a federal crime, it should be. Louisiana should lead progress and enact criminal statutes that balance the victim’s rights, as opposed to having knee-jerk reactions that place fault on the victim. Admittedly, there is much more work to do ahead in the U.K., but at least putting the issue on the table that violent rape is absolutely intolerable is step in the right direction.


Does the grocery store have a duty to secure its buggies?

Early on law students are exposed to the concept of “reasonably foreseeable.” It will be interesting to see how this plays out in a case recently filed in Orleans Parish by a woman who was in an automobile accident she alleges was caused by a stray shopping cart. The plaintiff contends that the grocery store failed to make appropriate security measures which resulted in the basket rolling off the parking lot and onto the highway where she was driving. Doubtless, the issue will arise whether Winn-Dixie knew or should have known that its baskets were a substantial factor in causing an unreasonable risk of harm. In this case, whether it should have known the basket could ultimately end up in the highway, and whether it could have prevented the accident had it exercised reasonable care.

Whether or not Winn-Dixie has such a duty is not an ironclad rule. Although, theoretically our civil law system has a code which we rely upon in instances of tortious infractions, the outcome will be heavily fact intensive. What measures were taken to avoid the situation, by both the plaintiff and the defendant? Did Winn-Dixie have actual knowledge that its baskets were exiting the property (either intentionally or negligently)? The answer will have to be decided by a judge summarily, or perhaps even by twelve jurors. The result is guaranteed to be interesting.


When you get swindled under Napoleonic code…

To outsiders our customs may be perceived as bizarre and our laws byzantine. Our state is divided by Parishes not Counties. We have neutral grounds not medians. And quite significantly, we govern by civil law not common law.

Intrinsic to a discussion of civil law is the topic of the Napoleonic Code. Its a dominating theme hammered into our collective consciousness. I still remember reading, and then watching A Streetcar Named Desire. The scene where Stanley Bekowski Kowalski (played by Marlon Brando) expresses what is his understanding of civil law:

“Now just let me enlighten you on a point or two… Now we got here in the state of Louisiana what’s known as the Napoleonic code. You see, now according to that, what belongs to the wife belongs to the husband also, and vice versa… It looks to me like you’ve been swindled baby. And when you get swindled under Napoleonic code, I get swindled too and I don’t like to get swindled…”

Except, this is not entirely the truth of the matter and legal theorist who read this discourse may be puzzled. Although seemingly innocuous, it is my opinion that statements such as the quote above, raise more questions than answers. Thereby, perpetuating the allure that surrounds our civil law system.

Does Louisiana have the Napoleonic code? No, but at one time it did. Does “what belongs to the wife belong to the husband, and vice versa”? Yes, Louisiana is among the 8+ community property states. However from a modern perspective Stanley has oversimplified the rule as it currently exists. And while the Napoleonic Code is a fun word to say, it is not the sole body of legal work that was the precursor to Louisiana law.

Much of Louisiana’s law is influenced by the Siete Partidas. Originally written between 1256-1265 the legal text is a compilation of laws, divided into seven parts.  Described as a “humanist encyclopedia” it addresses philosophical, theological, moral, and religious topics. Without expounding much further, there’s your history lesson for the day.

Unprotected Speech: A Footnote to the First Amendment

Although the First Amendment preserves several rights, the one of import for this post is the freedom of speech (FoS). The FoS is one of the prized rights retained by the people, and there is a heavy burden on government action that infringes on this right. There are many tests and legal presumptions (also could be the subject of another blog), but ultimately not all speech is treated equally. Basically, there is protected and unprotected speech. The classic example of unprotected speech is the person who yells “fire” in a crowded movie theater, when there is in actuality no fire at all.

So, here is a laundry list of the various forms of unprotected speech: speech that 1) creates a clear and present danger of imminent lawless action; 2) constitutes “fighting words” as defined by a narrow, precise statute; 3) obscenity (speech, film, etc.); 4) if it constitutes defamation; 5) or violates regulations against false or deceptive advertising.

This is a very basic summary of the exceptions to the First Amendment. There is a plethora of case law on what the court defines as clear and present danger. You will also notice that “fighting words” depends on a “defined, narrow, precise statute.” In summary, while Americans enjoy freedom of speech remember that it can be curbed within reason.