We recently lost a troubling appeal based on a technicality.
The client, a 28-year-old man had been convicted of statutory rape. He met a girl on MySpace who claimed to be 19 years old - and she looked and acted it. In the client's state, the age of consent is 16.
The had consensual sex twice. Once when the girl was 15 years, 10 months old; and once when she was two weeks shy of her 16th birthday. The client is now in prison. When he's released, he'll be known as a registered sex offender for the rest of his life. How is that just?
Did something magical happen to that young lady in that two month gap between when she had sex, and when she turned 16? Was there some quickening?
Why didn't the Court say, "The girl lied on her MySpace page. She looked well over 16 years old. She was emotionally mature for her age. Plus, your client had sex with her when she was almost 16. Sending your client to prison and requiring him to register as a sex offender would be like convicting a person based on a technicality. It just doesn't make sense. It's not fair. Case dismissed."
Can anyone imagine a judge ever saying that? No. Instead, judges go on about how, "The law is the law. Sorry. My hands are tied." Another life is ruined.
Yet judges do say that in almost every case involving police misconduct. When a police officer violates your rights, he breaks the law - the Supreme Law of the Land, the United States Constitution. Yet judges regularly excuse this misconduct. We can't, they say, hold police accountable on technicalities. "The police officer might have violated the law, but he didn't so do unreasonably. It was a reasonable violation of the law."
Yet we can send a man to prison and require him to register as a sex offender for the rest of his life based on a technicality. Isn't having sex with someone a couple of months before her birthday a reasonable violation of the law? Plus, how was this young lady harmed? Biologically she was not materially different from the time she had sex, and the time she turned 16. Nothing magical happened. There was no harm. So why the foul?
As Scott Greenfield noted in a somewhat related context, "No harm, no foul is a one-way street."