Assault & Battery Criminal Law Change

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dkearns90

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I have a friend who is in deep trouble. See we live in Idaho, and here the Sex Laws are a little different then around the rest of the country. At his age of 18 he had sex with a 16 year old and he was charged with Felony Injury to a Child and sentenced to Four Years. He served six months in Cottonwood, and got out and stayed on Probation until he was arrested for Probation Violations.
He's not the brightest guy in the world and he slept with four minors, two the age of sixteen and two the age of seventeen.
Now the Law for consent now in Idaho is Sixteen years of age and you can be only older then them as much as five years. But this didn't change until sometime July 2010, but these acts that he did was before then and he was nineteen at the time. He now could be facing criminal charges for those four minors. The question is, CAN he face new charges for those minors IF the law is changed and it's no longer illegal? Even if he committed 3/4 before the law had been passed?

I don't really want a lot of judging. Yeah he's stupid but he's not a pervert. Please this is URGENT!
 
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Whatever the law was at the time of the criminal act is the law that matters. If the law later changed then he can still be prosecuted since it was illegal at the time he did it.
His probation status will make it easier to get him, and he can expect harsher sentencing since it isn't his first time around.

You are right though... he isn't very bright. He should prepare himself for some prison time because that is where he is headed if he doesn't shape up real fast. Sex offenses are no joke.
 
Whatever the law was at the time of the criminal act is the law that matters. If the law later changed then he can still be prosecuted since it was illegal at the time he did it.
His probation status will make it easier to get him, and he can expect harsher sentencing since it isn't his first time around.

You are right though... he isn't very bright. He should prepare himself for some prison time because that is where he is headed if he doesn't shape up real fast. Sex offenses are no joke.

Wrong by all means.

That is not how retro-activity of law works.

The universal common-law rule,almost anywhere in the world,in U.S included, is that when the legislature repeals a criminal statute or otherwise removes the State's condemnation from conduct that was formerly deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct.

The question is, CAN he face new charges for those minors IF the law is changed and it's no longer illegal?

That means NO ,he can't.

*************************************************************************************

Disclaimer: I am not a lawyer.
 
That is not always true. It really would depend on how the law is drafted.
I would highly doubt the legislature would indicate any intent to dismiss any pending charges in sex crimes case involving minors.

At any rate, it appears that "friend" does not have any pending charges yet and is just nervous, so the issue is likely moot.
 
That is not always true.

Wrong again.It is always true.

It really would depend on how the law is drafted

It doesn't depend on that.

I would highly doubt the legislature would indicate any intent to dismiss any pending charges in sex crimes case involving minors.

Why do you doubt it? It is no longer a crime.If it is no longer a crime,why do you doubt that no one should be prosecuted for such conduct any longer?

Here is references:

http://www.chrisconrad.com/expert.witness/rossi.htm

http://en.wikipedia.org/wiki/Ex_post_facto_law

http://en.wikipedia.org/wiki/Nullum_crimen,_nulla_poena_sine_praevia_lege_poenali

etc.....
 
Thank you both for your apt replies. I perhaps should include that these charges have not been filed as of yet, however they are building a case and could soon be filing charges against him. So what I'm getting from MightyMoose is that he is looking at hard time, and what I get from John39 is that although the acts in question happened prior to the law change, because there have been no charges filed until after the law change, then they should be dismissed. Correct?
I will admit to you that those links you gave me I read over and I could only understand the basics, and that is what I understand. I could use some more evidence so if you have any other information regarding this issue please PLEASE let me know and I would be so very thankful.

P.S.
It really is a friend, he's my fiancee, and no I'm not one of the minors. I'm twenty :)
 
look,I am not a lawyer.I don't know if mightymoose is or not,he might be a law student.

There is few lawyers active on the board,they might chime in.

Could they bring charges?Sure,anything can happen.Should such charges stick,in the light of the (as you claim) recent decriminalization of the referenced conducts? I think not at all.

Any beneficial change in law can be retroactively applied in criminal cases.

If when the legislature repeals a criminal statute or otherwise removes the State's condemnation from conduct that was formerly deemed criminal, requires the dismissal of a pending criminal proceeding charging such conduct, THEN even more,(inferred with even greater force) such charges shouldn't be brought.

To ease your mind,make sure you get an answer from professional,a lawyer.

I could use some more evidence so if you have any other information regarding this issue please PLEASE let me know and I would be so very thankful.

sure here it is:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=378&invol=226

http://bulk.resource.org/courts.gov/c/US/378/378.US.226.12.html

This rule,I see by above referenced Court decisions,adopted here in the U.S as well ,has roots in Roman Law.In the European Legal systems,which have codified laws,and are based predominantly on Roman Law,it is easier to put it in plain sight.
 
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I perhaps should include that these charges have not been filed as of yet, however they are building a case and could soon be filing charges against him.

Until they do, there is nothing to worry about.

So what I'm getting from MightyMoose is that he is looking at hard time
I said he can expect harsher sentencing- that does not necessarily mean hard time. It would depend greatly as to whether they are felony or misdemeanor offenses, however his current probation status for the same offense is not going to help.

and what I get from John39 is that although the acts in question happened prior to the law change, because there have been no charges filed until after the law change, then they should be dismissed. Correct?
The charges CAN be dismissed. I highly doubt they would do so with a sex crime against minors case. If you can get your hands on the actual legislation that was passed you might likely find language within regarding the legislature's intent for application of the change.
Actually, the text of the bill can be found here: http://legislature.idaho.gov/legislation/2010/S1385.htm


I just read over it and I see what the issue is. Idaho reduced the age for statutory rape from 18 to 16. If the suspect is more than three years older than the 16 or 17 year old victim, he can be charged with rape even if sex was consensual. The five year difference appears to apply to sexual battery of a minor, which is a totally different offense. This change is only regarding the charge of rape, so depending on the age difference he MIGHT dodge that- but there is the lesser offense of Fornication under Chapter 66 that still applies, and possibly others (including violation of probation).

Bottom line- the legislation change won't save him. He might be spared the felony offense, but there are others that apply.
 
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Why do you doubt it? It is no longer a crime.If it is no longer a crime,why do you doubt that no one should be prosecuted for such conduct any longer?

It was a crime at the time that the act was committed. I suspect prosecutors have some leeway under these circumstances, and the legislature can have its own input within the text of the bill they pass.

From the 3rd link you provided:
Nullum crimen, nulla poena sine praevia lege poenali (Latin, lit. "No crime, no punishment without a previous penal law")
The maxim states that there can be no crime committed, and no punishment meted out, without a violation of penal law as it existed at the time. Another consequence of this principle is that only those penalties that had already been established for the offence in the time when it was committed can be imposed. Thus, not only the existence of the crime depends on there being a previous legal provision declaring it to be a penal offense (nullum crimen sine praevia lege), but also, for a specific penalty to be imposed in a certain case, it is also necessary that the penal legislation in force at the time when the crime was committed ranked the penalty to be imposed as one of the possible sanctions to that crime (nulla poena sine praevia lege).
 
look,I am not a lawyer.I don't know if mightymoose is or not,he might be a law student.

No, not a lawyer, and I could be wrong... as could a lawyer.
I'm a California Sheriff expressing an opinion.
There are plenty of things that I don't know about criminal procedure, but I have been around long enough to have some common sense about these sorts of things.

After looking at the actual bill and considering the other related Idaho statutes, it is clear that this person will certainly be on the hook for something if they decide to pursue him. The ages of the females will be significant in determining the charges. The closer their ages, the less likely they will pursue it, but given his probation status and prior conviction for the same thing it is probably hard for them to let it slide.

Until they file charges there is nothing to worry about.
 
In Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987), the United States Supreme Court held "that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." Id. at 328, 93 L. Ed. 2d at 661. The Griffith Court gave two important reasons for this holding.

First, it is a settled principle that this Court adjudicates only "cases" and "controversies." Unlike a legislature, we do not promulgate new rules of constitutional criminal procedure on a broad basis. Rather, the nature of judicial review requires that we adjudicate specific cases, and each case usually becomes the vehicle for announcement of a new rule. But after we have decided a new rule in the case selected, the integrity of judicial review requires that we apply that rule to all similar cases pending on direct review. . . .

Second, selective application of new rules violates the principle of treating similarly situated defendants the same. . . . The problem with not applying new rules is "the actual inequity that results when the Court chooses which of many similarly situated defendants should be the chance beneficiary" of a new rule.

Id. at 322-23, 93 L. Ed. 2d at 658-59 (emphasis in original and internal citations omitted). Both of these reasons favor retrospective application of Burge.

First, the proposition that the integrity of judicial review favors retrospective application of Burge is inherent in the argument itself. Next, it is just as inequitable to single out a particular defendant from all similarly situated defendants for application of a new rule that works to that defendant's detriment, as it is to single out a particular defendant for application of a rule that works to that defendant's benefit.

Finally, the traditional reason for not giving retrospective application to a new rule is not a concern in this case. As explained by the Griffith Court, "reliance by law enforcement authorities on the old standards and effect on the administration of Justice of a retroactive application of the new rule" virtually compelled a finding that the new rule was not retroactive. 479 U.S. at 324-25, 93 L. Ed. 2d at 659. Double jeopardy concerns come into play only after investigation, interrogation, and arrest. They have little or no bearing on the day-to-day activities of law enforcement personnel. Further, the administration of Justice actually benefits from retrospective application of Burge. One of the main reasons we returned to the "same elements" test was because "application of the 'same conduct' analysis beyond Blockburger has created confusion and is 'unstable in application.'" Burge, 947 S.W.2d at 881, quoting Dixon, 509 U.S. at 709, 125 L. Ed. 2d at 576.�?

The courts have explained that if a new statute increases the penalty after the crime has been committed, or made an act a crime which at the time of its commission was not a crime, than it is substantive law and should not be applied retroactively. This would be ex post facto legislation.

However, the Justice case points out that a remedial statute that deals with procedure and rules or which recognizes new rights in favor of the defendant may be applied retroactively.
 
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This is how I see this controversy.There is two elements that must exist to establish criminal act.Actus reus and mens rea.

If such conduct is no longer considered a crime,there is absence of actus reus and thus such conduct is no crime any longer .

It was before?

Sure.It is not now though.

We are talking about possible prosecution for such conduct NOW.

Based on what law? Repealed law?

I don't know why is this even a controversy.
 
mightymoose

I just carefully read your last posts.I see that you discovered that

I just read over it and I see what the issue is. Idaho reduced the age for statutory rape from 18 to 16. If the suspect is more than three years older than the 16 or 17 year old victim, he can be charged with rape even if sex was consensual. The five year difference appears to apply to sexual battery of a minor, which is a totally different offense. This change is only regarding the charge of rape, so depending on the age difference he MIGHT dodge that- but there is the lesser offense of Fornication under Chapter 66 that still applies, and possibly others (including violation of probation).

If that is true,that means such conduct was not decriminalized,as the OP stated.

Unlike you I did not check.

I based what I said on the premise that what OP stated is a fact.

I am lazy that way.

Now,if what OP said is not a fact,and the lesser offense of Fornication under Chapter 66 that still applies,then the premise I used in this particular case was wrong.

However,if such conduct were absolutely decriminalized,and no offense/crime could be attached to it any longer,then prosecution for such conduct should not happen,now.
 
John- the biggest problem I have with your argument is the use of the word "may". Saying that a beneficial change "may" be applied retroactively does not mean that it "shall" be applied retroactively. It implies an option with some leeway, and again, I believe this sort of thing is typically addressed by the legislature when it enacts the legislation. There is usually a statement of intent that will go along with a bill that explains why it is enacted and how it is to be applied. With this piece of legislation a particular date was set for enactment after it was passed. The legislature intended that as of that date that application of the law would change. Up until that date there is still a valid law on the books with a specific punishment, and there is no reason why it could not be enforced if violated.
The change in this law could effect the situation the OP is concerned about depending on the ages of the females, but again, only regarding the more serious charge of rape. There are lesser offenses included that have not changed. The change of the statutory rape law could actually benefit this person and cause the prosecution to go with the lesser charges, however I do believe they could proceed with prosecution of statutory rape under the law as it existed at the time the act was committed, with the penalties in effect at that time, if they choose (depending on the legislature's intent). What they can't do is impose new penalties that were not in effect.

I too would be interested in the opinion of one of the attorneys lurking about on here... though they may be gone for the holidays.
 
John- the biggest problem I have with your argument is the use of the word "may". Saying that a beneficial change "may" be applied retroactively does not mean that it "shall" be applied retroactively. It implies an option with some leeway, and again, I believe this sort of thing is typically addressed by the legislature when it enacts the legislation. There is usually a statement of intent that will go along with a bill that explains why it is enacted and how it is to be applied. With this piece of legislation a particular date was set for enactment after it was passed. The legislature intended that as of that date that application of the law would change. Up until that date there is still a valid law on the books with a specific punishment, and there is no reason why it could not be enforced if violated.
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Yes and no I think.The law will apply retro-actively IF congress specifies retro activity,for those already convicted,but not for those who are not..
Those who have not been convicted and their cases are pending,(or have not even been charged ) are off the hook,and it is not up to Congress to to pardon them or not,because for those not convicted,and not charged, is criminal procedure issue,not legislative issue.It is a procedural stage in the litigation of a case when it is necessary to reconcile the differences between the laws ,the old repealed one, and the new one.Of course the new law must apply for any one about to be charged in the future.Can they really use the repealed law to charge someone ? If yes ,in my opinion that is so wrong when certain conduct have been totally decriminalized.

(which in the case of the OP,I thought it was,because she said that.However you say it have not been totally decriminalized.My argument was/is only if it were totally decriminalized)

You are right,I was not able to offer convincing proof for my argument.It is hard to chase after case law decisions (although the ones I quoted here help my argument).

I would like one of the lawyers to chime in and tell us.I suspect this must be learned in law school.

Merry Christmas
 
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May I please interject and thank you both for that very civil and educational conversation?

Thank you :)

Merry Christmas!
 
May I please interject and thank you both for that very civil and educational conversation?

Thank you :)

Merry Christmas!

O yeah ......I know you!!!!!!

I know You are making fun of me again!!!You are using irony or something$$#*(*&((*^(*0

You must be!!!!

Or is this genuine and my Christmas present? ..:angel :D
 
Can they really use the repealed law to charge someone ? If yes ,in my opinion that is so wrong when certain conduct have been totally decriminalized.

Of course, because it is the law that was in effect at the time of the offense.
Although the law later changed, a crime was still committed.

Lets use a generic hypothetical:
The speed limit is 55. On January 1 the speed limit will be raised to 70.
Today I get a speeding ticket for driving 65 in a 55, but my court date is not until the end of January after the new speed limit takes effect.
Am I guilty of breaking the speed limit of 55 before January 1, or will my citation be dismissed because the speed limit is 70 on my court date?
At the time of the offense there was a law in place that set the speed limit at 55 and it had specific penalties. I would expect to be fined accordingly.

By setting a specific date for a law to go into effect the legislature essentially is saying that from that point on any new offenses will be handled according to the new law- but the date of the offense is more significant than the date of adjudication. If you read over the text of the bill that I linked earlier you will see various references to specific dates that distinguish how offenders are differently affected by the law.
 
Effect of Repeal: United States of America
Crawford in his book on "Statutory Construction" dealing with the general effect of the repeal of an Act states the law in America to be as follows:--- ''A repeal will generally, therefore, divest all inchoate rights which have arisen under the repealed statute, and destroy all accrued causes of action based thereon. As a result, such a repeal, without a saving clause, will destroy any proceedings whether not yet begun, or whether pending at the time of the enactment of the repealing Act, and not already prosecuted to a final judgment so as to create a vested right." (Pp. 599-600).

Rationale of Saving Clause
In a footnote relating to the cases which the author cites in support of the above proposition, he adds:-- "See Cleveland, etc., R. Co. v. Mumford (Ind.) 197 N.E. 826. 239 where the repeal of a statute during the trial prevented a judgment from being rendered. Similarly, there can be no legal conviction for an offense, unless the act be contrary to law at the time it is committed; nor can there be a judgment, unless the law is in force at the time of the indictment and judgment. If the law ceases to operate, by its own limitation or by a repeal, at any time before judgment, no judgment can be given. Hence, it is usual in every repealing law to make it operate prospectively only, and to insert a a saving clause, preventing the retroactive operation of the repeal and continuing the repealed law in force as to all pending prosecutions, and often as to all violations of the existing law already committed."

the saving clause.....did not save me :nuts

Knock knock...

:dgrin Whatsup Santa ?what did you bring me !!?

:angel saving clause!

..it sounds good what is it?

remember last week when you got busted for smoking pot...and they are preparing case for you?

yeah man thas $@#$#%$%#%@#%@ UP

well ,remember they repealed the law and now smoking pot is legal?

yeah man thaswhatsup!!!!

well a saving clause means I can roll up one now with you...here lets smoke up some.....no worries,it is legal

yeah man saving clause......thatswhatsup!!!!

it also means your a** is toast because you smoked one last week...
 
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