Dumb California Law: It's Not Rape Unless Rapist Poses as Husband

On occasion you hear about those laws that remain on a state's books but which are obsolete because they are outdated or no longer relevant. Things like "In Kentucky, 'No female shall appear in a bathing suit on any highway within this state unless she be escorted by at least two officers or unless she be armed with a club,'" or some other such silliness. Often such laws make for a good laugh as you read them to each other at parties or other social gatherings.

Apparently, California judges pulled an arcane 19th century law from the dust heap two days ago, on January 2, when they made a controversial ruling in a rape case. Here are the essentials of the story:

Julio Morales had been convicted and sentenced to three years in state prison, found guilty of entering a woman's bedroom late one night once her boyfriend had gone home and initiating sexual intercourse while she was asleep, after a night of drinking.

But a panel of judges overturned the trial court's conviction and remanded it for retrial, in a decision posted this week.

The victim said her boyfriend was in the room when she fell asleep, and they'd decided against having sex that night because he didn't have a condom and he had to be somewhere early the next day.

Morales pretended to be her boyfriend in the darkened room, and it wasn't until a ray of light from outside the room flashed across his face that she realized he wasn't her boyfriend, according to prosecutors.

"Has the man committed rape? Because of historical anomalies in the law and the statutory definition of rape, the answer is no, even though, if the woman had been married and the man had impersonated her husband, the answer would be yes," Judge Thomas L. Willhite Jr. wrote in the court's decision.

The appeals court added that prosecutors argued two theories, and it was unclear if the jury convicted Morales because the defendant tricked the victim or because sex with a sleeping person is defined as rape by law.

The court said the case should be retried to ensure the jury's conviction is supported by the latter argument. The reversal of the rape charge is based on a law in the California penal code that states: "any person who fraudulently obtains the consent of another to sexual relations escapes criminal liability (at least as a sex offender under tit. IX of the Pen. Code), unless he (or she) ... masquerades as the victim's spouse." Morales claimed that the woman consented because when he kissed her initially, she kissed him back. Only when she saw that he was not her boyfriend did she object. Because the prosecutor did not make it clear that the charge of rape was based on the woman being asleep when she was molested, the appeals judges could not uphold the conviction.

The man is likely to be retried if it is determined that double jeopardy does not attach.

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The First Amendment Prevails in Louisiana and California

Two recent First Amendment victories are in the news this week.

(1) Woman can flip the bird in Christmas lights.
(2) Therapists can try to convert gays.

Both stories are best read in their online versions. They involve free speech and free association.

In the Louisiana case, a woman put up lights in the shape of a hand flipping off her neighbors against whom she held a grudge. She was first told to take it down by police, which she did. Then she put it back up after the ACLU wrote a letter to the paper on her behalf. She was again threatened by authorities with violation of the obscenity law, and finally she filed suit. The court ruled that she has a First Amendment right of free speech and can display the holiday-lighted gesture.

In the California case, a judge put a halt to the enforcement date of a law that was passed recently that prohibited counselors from trying to convert gay youth from their sexual persuasion. The law was passed earlier this year and Governor Jerry Brown signed it into law. For now the implementation date has been put on hold. The case will be re-visited. But it is a small victory for parents and for youth who believe that "conversion Therapy" might help them, given that they want to try to change. (Isn't that what President Obama called for, after all?)

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Two Medical Cases with Strange Outcomes

Two medical cases where things went wrong caught my eye in the news this week. The first is from the Bluegrass State. I heard about it a couple of years ago, and it made me recall my days of medical malpractice defense work. You learn a lot of medical terminology doing that type of work since you have to review a lot of medical records and depose doctors and other medical personnel. Luckily, I never ran into a case like this first one, even though I worked in Kentucky.

Plaintiff Seaton

A man with penile problems was scheduled to have a circumcision to alleviate pain in 2007. Phillip Seaton signed a waiver that stated the doctor could undertake other procedures if he thought they were necessary during surgery. He knew that he had squamous cell carcinoma, a type of skin cancer, in his penis but he did not know how serious it was. The surgery took place at Jewish Hospital in Shelby County, Kentucky.

Dr. Patterson (right) and his attorney

During surgery, Doctor John Patterson discovered squamous cancer cells were much wider spread than previously thought. So the doctor amputated a portion of the man's penis. When he awoke, he was pretty upset. He and his wife sued the doctor and the hospital. The hospital settled with the man, but the doctor took it to trial. Patterson claimed he saved the life of his patient by taking immediate action during the surgery.

A jury found that the doctor did not overstep his bounds in going the extra mile to resolve Seaton's problem. Indeed, Seaton signed a waiver permitting the doctor to exercise discretion, so he did consent to the additional surgery in the waiver. A witness also signed the form. Only later was it revealed that Seaton could not read, a fact that he did not tell Dr. Patterson at the time he signed the waiver.

Seaton appealed the decision, and it was the Court of Appeals decision this week that brought the case back into the news. Two of the three appellate judges, both female, found in favor of the doctor and upheld the trial court's decision -- the doctor acted within the parameters of what was medically necessary and prudent and did not violate the medical discretion that is afforded to doctors. Will Seaton appeal to the Supreme Court of Kentucky? That remains to be seen. It has been five years since the surgery, and undoubtedly it will be difficult to find an attorney who will be willing to front the cost. His current attorney may be obliged to file the appeal. But certainly he will not be happy if he is required by the rules of professional responsibility to see the case through to the end.

The second medical malpractice case this week that caught my eye involves a stem cell treatment gone wrong on a California woman. The story was first reported in Scientific American, and this is how they reported on the incident that was the subject of this case.

 When cosmetic surgeon Allan Wu first heard the woman's complaint, he wondered if she was imagining things or making it up. A resident of Los Angeles in her late sixties, she explained that she could not open her right eye without considerable pain and that every time she forced it open, she heard a strange click—a sharp sound, like a tiny castanet snapping shut. After examining her in person at The Morrow Institute in Rancho Mirage, Calif., Wu could see that something was wrong: Her eyelid drooped stubbornly, and the area around her eye was somewhat swollen. Six and a half hours of surgery later, he and his colleagues had dug out small chunks of bone from the woman's eyelid and tissue surrounding her eye, which was scratched but largely intact. The clicks she heard were the bone fragments grinding against one another.

What was causing the clicking in the woman's eyelid? Bones. Yes, bones. A summary from another source explains:

Bone cell

 [T]he very scientific-sounding stem cell facial was administered by cosmetic surgeons who "removed abdominal fat cells with liposuction and isolated the adult stem cells within." Next, they injected those stem cells into the woman's face, which theoretically should stimulate the growth of new, youthful skin cells.

The catch? The stem cells in question can develop into bone, cartilage, fat, or other tissues. The doctors also injected the woman's face with a dermal filler during the procedure, one that contained calcium hydroxylapatite, a mineral that encourages those stem cells to develop into bone, not skin. That lovely combination is what doctors think caused the cells to turn into bone and result in this freakish "side-effect."

Stem cells, which essentially act like chameleons (for want of a better analogy) and take on the characteristics of the nearest tissue that they can replicate, grew into small bone fragments grew in her eyelid. That's what was clicking together in her eye. It just goes to show you that $20,000 cannot buy you happiness.

So, those are the two boner cases in one week that caught my eye because they caused the respective patients a great deal of pain, in one way or another. I just hope these two senior citizens (he is 66 and she is described as being in her late 60s) can find a way to live their late years in . . . fulfillment.

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Doctor Fires Assistant Because She Was "Simply Irresistible"

This employment case out of Iowa is interesting and has implications for both employers and employees. A dentist employer fired a ten-year female employee because he said she was too attractive and he found her irresistible. The dentist's wife also worked in the business, and when her husband began showing signs that he was attracted to the female assistant, the dentist and his wife sought counseling. The solution to saving their marriage was to fire the woman who was threatening it -- even though she did not know she was a threat.

Iowa's Justices

The female employee sued on grounds of gender discrimination. But the trial court judge dismissed the case saying the made its way to the Supreme Court of Iowa, where a panel of seven all-male judges ruled 7-0 that this was not discrimination based on gender. Rather the male employer's decision to terminate the female employee was based on his desire to save his marriage.

Whether the female employee will appeal to the U.S. Supreme Court remains to be seen. If there is no issue of federal civil law, then she cannot appeal. I do not know what laws she cited in her case, but if they were based on state.  law only, then this case is finished and she won't be getting anything more from the dentist. At least not monetary.

Paris Hilton should be glad she doesn't have to get a real job.

That Stinks: Federal Workers Cannot Use FSA for Beano

I took the liberty of obscuring the identity
of the character in the middle to protect
his identity too.

There is, as of now, no lawsuit filed in the case I am about to alert you to. But I suspect it will not be long before that happens. The underlying reason for the suit will not be that he was fired from his federal government job -- although he was. Rather, it will be intentional infliction of mental/emotional distress. This federal worker was given a formal reprimand for . . . how can I say this with a straight face . . . passing too much gas too often with too much gusto.

Reportedly, the worker was charged with "conduct unbecoming  a federal officer." You can read the actual letter sent to the employee of the Social Security Administration at http://www.thesmokinggun.com/file/gas-attack-work.

I have to wonder: where in the heck did they get the photograph that was on the Internet?

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Bucky Balls Going the Route of the Dinosaur

Back in August I posted on my other blog about a fun desk toy called Bucky Balls. At that time the fight was on to save this unique and addictive toy from extinction. Well, the fight is over. Bucky Balls lost. They are days away from going the way of the ... dinosaur. I would have said "dodo" but there are plenty of them left at the CPSC. Here is my video once again that I made for the "Save Bucky Balls" campaign.

You can still get a set a set of Bucky Balls if you act fast. They'll be gone forever from public sale in less than 3 days! Go to https://www.getbuckyballs.com/. If you use the code FinalHours at checkout you can save 20% or so. That equates to getting your shipping for free if you order a full set. I just ordered a set of 10 replacement balls ($3.50) for my two BB sets because it is easy to lose one of the little balls -- which has happened to both my sets. And since they soon will be extinct, you won't be able to get them anymore!

 

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What Happens When You Are Too Good at What You Do?

Two years ago this month videos surfaced of a man-child that was wowing basketball fans in Arkansas. A seventh grader named Adrian Moore stood 6'3" tall and was slamming down dunks over his comparatively vertically challenged competitors. Videos of the youngsters antics are still available on the web, such as this Yahoo website. Here's one if you want to see how this young man surpassed his peers in stature and talent.

Naturally there was discussion abut whether it was fair for this young man with adult talents to compete against "normal" seventh-graders. A few weeks later the attention moved on to an eighth grader who stood 6'8" tall in the Philadelphia area, and he dwarfed is teammates also. His name is Horace Spencer, and he dominates on the court as well.

Horace Spencer, center, and teammates

Spencer has natural ability, and he is grateful for the on-court attention, but as an eighth grader he wanted nothing more than just to fit in off the court. That was difficult since he stood head and shoulders (literally) above everyone in his school.

Earlier this year, the country was introduced to the tallest youngster ever to play high school ball in the United States. His name is Mamadou Ndiaye, not to be confused with 7' tall Mamadou N'Diaye (b. 1975) from Senegal who played college ball for Auburn in the late 1990s, played professional basketball in the NBA for a few years, and eventually moved on to lesser paying basketball leagues. This Mamadou, also from Senegal, stands 7'5". Yes, that's right. He is five inches taller than the previous Mamadou and nine inches taller than Horace Spencer (and a year older than the latter also). You can see Mamadou II in action here.

All of these young men present a dilemma for teammates, coaches, opposition players, and fans. How do you deal with someone with such clearly superior God-given height and ability? If someone is clearly so much better, is it just a given that opponents have to suck it up and know they are destined to lose against the superior skill?

There are no easy answers. Indeed, a 12-year-old would-be peewee league football player named Elijah Earnhart was told in August of this year he could not play in the Dallas peewee league because, at 6'1" and 300 lbs, he was more than double the weight maximum of 135 lbs for seventh grade students. Naturally, no one wants other participating children to be hurt because of the superior size of a player, and this is more true in football than basketball since football is involves more contact than basketball. But there is no doubt that basketball can result in injuries to players when the disparity in size is great.

Recently there has been a lot of media coverage over a basketball player who presents a unique twist when it comes to players with superior height and strength. The story involves 220 lb Gabrielle Ludwig, who, at age 50, joined her California college team at mid-season. Gabrielle made history this month by being the only player to play on college teams as both a man and a woman. Gabrielle was Robert John Ludwig when she played in college in 1982. Now she is now playing on a California college team, and her teammates love her.

Two ESPN radio talking-heads were suspended this month for calling Ludwig an "it" during a broadcast. I suppose they thought it was funny. And some of their listener probably thought the same. But to laugh at someone who has been through such a mental, emotional and physical struggle is to show that you do not understand the big picture.Naturally, the controversy centers on whether this whole arrangement is "fair" to other teams since this man-turned-woman has a height and strength advantage on other players in the league. But she is also MY age and my husband's age, and I can assure you that neither of us is in any position to take on athletes half our age. Not many of us our age would be.

I do not know the "answer" when it comes to deciding whether this is "fair" or not, but I believe that Ms. Ludwig only wants to be "normal," meaning that she wants to be who her mind and her heart and her physical awareness tell her that she is, and to interact with others and to participate in activities that "normal" people do. This is one case where I wish her the best.

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