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Utah Legislature Considering Making Certain Consensual Sex Acts Illegal

The Utah Legislature is currently considering HB 74, which would make it impossible to consent to certain sex acts. A person reading or watching the local news coverage would have a difficult time figuring out what the proposal actually changes. Judging by the comments of the respective coverage, it seems people are not aware that the law—as currently written—already criminalizes the conduct they find objectionable.

HB 74 would make it so that no matter how much both consenting adults might enjoy certain sexual activities, in the eyes of the law, it would be rape. The following words are proposed to be eliminated from two separate subsections of Utah Code 76-5-406:

(5) the victim has not consented and the actor knows the victim is unconscious, unaware that the act is occurring, or physically unable to resist;
(6) the actor knows that as a result of mental disease or defect, the victim is at the time of the act incapable either of appraising the nature of the act or of resisting it;

There are many potential acts that would now improperly be defined as a rape, but here are just a couple ways the bill is objectionably over-inclusive:

Consent Explicitly Given: Imagine a married person asked for the following from his or her spouse, “I like to be woken up by [specific sex act]. Would you mind doing that for me tomorrow morning? On my birthday? On Valentine’s Day?” Under the proposed changes to subsection 5, the explicit consent is irrelevant to whether or not a rape has occurred. At the time of the initiation of the sex act, one person would be unaware that the act is occurring and physically unable to resist. Whether or not all people would enjoy having their partner lovingly awaken them with a sex act, the Utah Legislature should not make it illegal for the people who do enjoy it to have fulfilling sex lives.

Bondage: A prosecutor could bring charges, and potentially convict someone for rape, under both proposed subsection changes. Regardless of how much a person might enjoy being tied-up, handcuffed, or otherwise restrained, the person is likely unable to physically resist the sex act. By making consent irrelevant under subsection 5, and having complete mental capabilities irrelevant under subsection 6, a person who engages in bondage could potentially be convicted of rape.

A few people have argued that if two people are consenting, then no one will report a crime. I have a couple responses to that. First, some people enjoy talking to their about their sex lives. No one knows what a busy-body neighbor or an over-zealous police officer will do with the information. Consenting adults should not have to worry about the government intruding. Second, there is no statute of limitations for rape in Utah. Many years later, after a relationship has turned sour, someone could report a “rape” that occurred between two consenting adults. The other person would be sure to draw an objection in court for even pointing out that the act was consensual.

 
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Posted by on February 4, 2015 in Uncategorized

 

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Expansion of Deferred Action Program

President Obama, in late November, outlined an expansion of the deferred action program that will include more people. We do not yet know the full details, but here is a bit about what we do know.

First, he ordered USCIS to expand the number of people who are eligible for DACA and the duration of approvals. While most of the other policy changes are going to take place later, renewals of DACA are now good for three years instead of two years as they previously had been.

Still to be implemented is the removal of the age cap. As originally implemented, DACA only applied to people born after June 15, 1981, but soon it will apply to everyone as long as they came to the country before the age of 16. DACA will also apply to people who were in the country on or before January 1, 2010 so more people will be eligible.

USCIS is also working on creating a new category of deferred actions for the parents of U.S. citizens or permanent residents. USCIS has not said yet if there will be an age minimum or maximum for this category so keep up to date on any new developments. Obama’s executive order requires that a person must have been in the country on November 20. 2014, and it is likely that USCIS will require some documentation to prove that. USCIS will have discretion to grant a deferred action. We do not know the specifics but people without any criminal history or contacts with bad organizations are likely to be approved. If the program is implemented similarly to DACA, people who do not have significant misdemeanors will be eligible as well. Those who are approved will be able to work legally in the United States, but they will not have a path to citizenship.

Finally, the executive action also expands the number of people who are eligible for conditional waivers when applying for an adjustment of status. To be eligible, a person mush be an undocumented immigrant and have resided in the United States for at least 180 days. Also, a person must either be the child of U.S. citizens or be the spouse and child of lawful permanent residents.

 
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Posted by on January 12, 2015 in Immigration Law

 

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Why Are Police Departments Reluctant to Use Body Cams?

On September 30, Salt Lake County District Attorney Sim Gill announced that the prosecutor’s office had reviewed body camera footage and cleared a police officer of potential charges for shooting an unarmed man. The body-cam video (available from the Salt Lake Tribune) shows the man walking away from the officer before turning around and lifting up his shirt. Sim Gill said the video showed the officer was justified in his fear for his safety and the use of a firearm was reasonable.

Over the last couple months, there been heightened public scrutiny of police shootings and other actions. A properly used body-cam would record whenever a police officer is on duty. Unfortunately, no police department in Utah requires all officers to use them. This video helped clear one officer. With regular use, officers should become accustomed to having everything on tape and just behave in their usual manner.

Digital recording technology has advanced to the point that police departments throughout Utah could have every officer regularly wear a body cam. They would be invaluable in bolstering police officer testimony, and they would not be susceptible to the problems of memory. It is curious that police departments are the least bit reluctant to start requiring every officer to wear one.

 
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Posted by on October 6, 2014 in Criminal Law

 

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Police Officers of America, You Have a Problem

Last night I was talking to my 4-year old niece. She told me Biscuit the Dog was missing. I told her, “You should call the police!”

“No, the police shoot dogs,” she told me.*

I was shocked to hear this because I have not done anything to educate her about police officer excesses. She learned of police officers shooting dogs from someone else. As near as I can tell, children’s television programming still portrays law enforcement officers in a glowing light. There are other places she could have picked up this tidbit, perhaps from news stories about the Salt Lake City police officer who shot a dog that was in its own yard. Unfortunately, there is nothing unique about that story and she could have heard similar stories anywhere.

*I, of course, asked her where she heard of police officers shooting dogs, but she was unable to tell me where she learned of this.

 
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Posted by on August 28, 2014 in Criminal Law

 

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The Hidden Costs of Pleading Guilty

“I am just going to plead guilty. I do not need a lawyer.” People frequently tell me that it would be pointless to hire a lawyer because they know they are guilty. Many people like the idea of accepting responsibility and moving on with their lives. Unfortunately, it is rarely that simple when the criminal justice system is involved. Most people know about traditional punishments like fines and jail time, but convictions have hidden costs.

Convictions have both legal and extra-legal penalties that are not apparent until several months or years have passed. With the permanency of computer records, these penalties often haunt people for the rest of their lives. And make no mistake, a guilty plea is a conviction and criminal records make no distinction as to whether someone has accepted responsibility. Here are some common hidden costs of convictions:

    • Driver’s Licenses – In Utah, licenses can be suspended for certain drug or alcohol offenses even if the criminal offense had nothing to do with driving.
    • Owning a Firearm – Any felony conviction and many misdemeanor convictions make it illegal to own firearms or other weapons. In Utah, a DUI conviction leads to a concealed weapons permit being denied or revoked for at least six years.
    • Student Loans – Many drug convictions make it harder or impossible to qualify for federally subsidized student loans.
    • Immigration – Convictions for felonies and misdemeanors can carry long-lasting effects for anyone who is not a U.S. citizen. Convictions may lead to deportation or make it harder to later become a U.S. citizen or change immigration status.
    • Applying for a Job – Many employers routinely conduct background checks.

This is not even an exhaustive list of the hidden costs of convictions. For many people, these hidden penalties are worse than the traditional penalties. Pleading guilty may ultimately be the right choice for a particular case, but a lawyer can structure a plea to minimize or eliminate these hidden costs. Not all crimes will cause a driver’s license to be suspended, for example, and it may be possible to plead to a related charge that does not have the potential for license suspension.

In addition to the hidden costs, a lawyer can also help with those costs the traditional costs of a conviction. These days prosecutors have a kitchen sink approach to charging people. Even assuming that someone is one of those rare people that do not care about maintaining a driver’s license, having a job, or being allowed to live in this country, walking into a court and pleading guilty is a foolish proposition. Often, one or more charges will be dropped in exchange for a plea, and having fewer charges can reduce the fine. You may also be neglecting the fact that you are not guilty of some of the charges. No one should let a vague notion that they have done something wrong substitute for a proper analysis of all the charges.

My lawyer fee could be partially or wholly paid just by getting charges dropped and fines reduced. It is always best to have a lawyer look over the charges and analyze the case as a whole. Many lawyer, including me, offer free consultations.

 
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Posted by on August 11, 2014 in Criminal Law

 

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Utah’s Minor in Possession of Alcohol Law

Utah’s law prohibiting minors from possessing alcohol has been referenced in the news over the last few days because an underage football player for the University of Utah received a citation for allegedly possessing alcohol. A minor in Utah may not buy, possess, or consume alcohol under Utah Code 32B-4-409. The law also makes it illegal to knowingly present false identification or otherwise misrepresent someone’s age in order to obtain alcohol or to attempt to buy or to ask an adult to buy alcohol.

Most states have similar laws, but many people may not be aware that, in Utah, a minor’s driver’s license can be suspended even if no driving was involved. Many minors care far more about the driver’s license suspension than about the possibilities of large fines, jail time, or the repercussions of having misdemeanors on their records. The Utah Driver’s License Division may suspend the minor’s licence for 1 to 2 years, depending on the circumstances of the alleged crime. The driver’s license suspension will not be shorter just because a person was almost 21 years of age, either.

There are other ways, however, to shorten or to avoid a driver’s license suspension. The law allows a judge to reduce the suspension if the minor completes an “educational series” about substance abuse. Sometimes it is possible to complete the classes before a guilty plea is even entered. In such cases, it may be possible to convince the judge to forgo the license suspension entirely.

If you or someone you know has been accused under Utah’s minor in possession law, it is important to hire a lawyer immediately. It will help anyone accused to navigate the system and maximize their chances of keeping their driver’s licenses.

 
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Posted by on July 29, 2014 in Criminal Law

 

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Natty Shafer Law Video on Renewing DACA

The video below briefly explains the process for renewing Deferred Actions for Childhood Arrivals.

 
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Posted by on July 9, 2014 in Immigration Law

 

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Cell Phones Are Private, Supreme Court Says

The United States Supreme Court issued a ruling today which requires law enforcement officers to obtain a search warrant for most searches of a cell phone. While the Court left open the possibility of officers conducting a cell phone search during “exigent circumstances,” the ruling in Riley v. California means officers cannot casually peruse cell phones.

The ruling was unanimous, which is a bit of a surprise for me, but this is a pretty big victory for champions of privacy rights. Often the Court refuses to protect the rights of those accused of crimes, but cell phones have becomes so ubiquitous that the Court could not ignore that cell phones are now among our most personal possessions. “Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” the Court said.

Many phones now contain more personal information than anyone has in any one location, including our homes. As the Court said, cell phones are not just phones. “The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.”

This ruling does necessarily guarantee that police officers will never look through your phone, but it does make such evidence generally inadmissible during criminal court proceedings. Anyone who has been subjected to a cell phone search should contact a lawyer about various options.

You can read my previous posts on the subject of cell phone searches here and here.

 
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Posted by on June 25, 2014 in Criminal Law

 

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Standard Operating Procedure

The home of former Utah attorney general Mark Shurtleff was the subject of a search warrant earlier this week, as various law enforcement agencies investigate alleged wrongdoing. Shurtleff accused the agents of “Dirty Harry” tactics on a local radio broadcast yesterday.

Shurtleff’s accusations are short on specifics, but what he does describe is not out of the ordinary. The officers were armed and wearing body armor. Shurtleff says they took his children’s computers and the memory cards from his wife’s camera, and that they trashed his house. It is standard operating procedure for law enforcement officers to be armed while on duty, and they are not careful about keeping a house orderly and clean when executing a search warrant. They confiscate anything that could hold relevant information such as computers or memory cards.

“I think if they’ll do that to me, with my entire life and career in service to law enforcement and public safety, they’ll do it to anybody,” he said. In today’s world, having a search warrant executed on one’s home is traumatizing. Imagine if Shurtleff had come to this realization when he was in a position to do something about it.

 
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Posted by on June 4, 2014 in Criminal Law

 

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When the ‘War on Drugs’ Affects the Wealthy

NPR reported today that U.S. Customs and Border Protection’s Office of Air and Marine Operations will alter its policy that has led to private aircraft pilots being searched, sometimes at gunpoint, by law enforcement officers.

How Customs and Border Protection (CPB) will alter its policy is not yet clear. Currently, CPB operate a tracking center, which monitors privately operated flights. They look for patterns that suggests drug transportation, such as taking an alleged drug route or flying in a manner that evades radar. When they find suspicious activity, CPB can alert law enforcement at the flight’s destination. Unfortunately, various law enforcement officials have used that information to aggressively search the planes of anyone suspected.

Tom and Bonnie Lewis love to fly airplanes so much that they live in a residential airpark near Fort Worth, Texas, where their garage is a hangar.

Two years ago, they packed their bags, loaded them into the airplane, and took off for Nashua, New Hampshire, to visit their daughter and her family. Mid-route, they stopped at an airport in Frankfort, Kentucky, to refuel and spend the night, when they noticed that a small jet had landed directly behind them, with no radio communication.

Four federal agents shouldering assault rifles scrambled out of the jet and surrounded the Lewis’s little two-seater plane, asking for IDs.

“Asking where we’d been, basically checking us out,” says Tom Lewis. “It didn’t take them too long to figure out they had grandma and grandpa that were taking a trip to New Hampshire to visit the grandkids.”

When the Constitution conflicts with the aims of the War on Drugs, the Constitution frequently loses. CPB acknowledges that in 68% of the cases this year where law enforcement was notified, no illegal activity was found. The NPR story quotes Eddie Young, a deputy assistant commissioner at CPB, as saying, “A 32-percent success rate is not bad in the law enforcement community.” That Mr. Young could soberly make that defense of the old policy is more than a little appalling. For the innocent 68%, the trauma of being searched at gunpoint is apparently an acceptable cost of the War on Drugs.

Assuming the policy is in fact changed, it will be because most pilots are more wealthy and influential than the average citizen. Most people just have their complaints ignored when law enforcement officers violate civil liberties.

 
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Posted by on May 28, 2014 in Criminal Law

 

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