I think lawyers see laws differently. Normally, they are not good or bad – they just “are”. Is it good or bad that a football field has a hundred yards? I don’t know. That’s just what it is. That’s how I feel about most laws, they are just rules, and generally they make some sense.
For a long time I have had a couple criminal laws that annoy me. First, Aggravated Harassment, calling someone and threatening them OR ANNOYING THEM, by phone is a class A misdemeanor, punishable by up to 1 year in jail. However, Harassment in the Second Degree (like punching someone in the face) is only a violation, with a maximum of 15 days in jail and no criminal record. Second, compare Sexual Abuse in the Third Degree (or Second) and Forcible Touching to Criminal Mischief in the Third Degree. Sex Abuse Third can be things like sexual contact with a person incapable of consent, it’s a class B misdemeanor – max 90 days jail Sex Crimes, then Criminal Mischief Third, intentionally damaging property with a value of greater than $250 (seems like everything someone decides to damage is $250), is a Class E Felony, could send a person to State Prison Criminal Mischief. Those laws are annoying.
The most evil law is not a criminal law. It is the Prison Litigation Reform Act of 1995, a federal law. The law was created to curb illegitimate lawsuits by prisoners, which it has done. The problem is it has limited legitimate claims as well. The law says that if a person is in a jail and their rights are violated they may not sue for mental or emotional damages unless there is physical injury. This may be the dumbest thing I have ever heard.
The law is particularly inadequate in cases of sexual abuse within the jail at the hands of the jail employees. Imagine the anguish, the loss of trust and the permanent psychological results of being abused by the government employee in charge of maintaining order.
The Constitution, one of the cornerstones of this great nation, forbids cruel and unusual punishment. Federal Courts have determined time and time again that sexual abuse of inmates is by definition cruel and unusual punishment. However, if there is no physical injury, then a lawsuit is not allowed under the amendment. This law has robbed the power from the Constitution and nobody even knows about it.
There are countless real victims that have been sexually abused by government employees and they have no recourse no matter how their life is affected because there was no blood or scarring or bludgeoning. For example, during my research I came accross REAL CASES where jailors put peanut butter on an inmate’s testicles and had the search dog lick it off… or a female jailor massaging a male inmates penis during a strip search and asked him “common baby why can’t I get you going?” The defense was not that it didn’t happen, the defense was it happened and it didn’t matter because of the Prison Litigation reform act. I am just not OK with this law. It is evil. It degrades inmates and our entire society.
The 2nd circuit, which is located in New York City, has taken a very expansive view of what physical injury means. In their recent decisions they seem to be saying that sexual abuse in a jail is by its definition an injury. I think it is an unreasonably broad reading of the law. However, I also believe that is the reading that does the most justice. The result is that inmates that are sexually abused in Rochester have a much better chance at justice than someone in a similar position in Dallas (Texas is known for the opposite, a very literal reading of the word injury).
The Prison Litigation Reform Act has become particularly relevant to me based on my recent investigation of Sergeant Robert Wilson. Robert Wilson was a Sergeant employed by the Monroe County Jail that sexually abused multiple female inmates. He pled guilty in New York Supreme Court to 21 counts of sexual abuse and official misconduct. We are considering a civil law suit on behalf of the inmates. My firm represents a limited number of crime victims, for more info click here Victim Representation.
Contact our Rochester criminal defense attorney to learn more.