Posner the Poet
With the Supreme Court out for the Summer, I've been watching the Seventh Circuit Court of Appeals more closely for interesting material. They have a great website, and it's easy to keep up with the opinions as they are handed down. I've talked about Judge Richard Posner in many posts recently, partly because he seems to write in a lot of interesting cases and partly because he's just a good writer. Both of those categories are satisfied in the Doe v Oberweis Dairy case. This case deals with a minor working at an ice cream shop. She was a victim of statutory rape by one of her supervisors. Posner decided to give us some great language in this opinion. Here, he summarizes what the supervisor did...
Bashman also picked up on another great Posner quote from the opinion...
"[T]he shift supervisor regularly hit on the girls (most of the employees were teenage girls) and young women employed in the ice cream parlor. He would, as one witness explained, 'grope,' 'kiss,' 'grab butts,' 'hug,' and give 'tittie twisters' to these employees, including the plaintiff."Howard Bashman also picked up on this case and gave us this interesting factoid...
[A] search of Westlaw suggests that this may be the first published judicial opinion in the USA to use the phrase "tittie twisters."I'm shocked it took this long.
Bashman also picked up on another great Posner quote from the opinion...
Nor are American teenage girls such blushing violets that sexual badinage is harassment per se.I guess Posner is saying that a little sexual talk in front of or directed at teenage girls is okay in the eyes of the law. Of course, this depends on the context. In Posner's eyes, they can take it. It is a bit of a long opinion for an appeals court opinion. However, the situation involved is fairly interesting and Judge Posner keeps it very readable.
Parts of the opinion were a bit strange. I was surprised to get to the end and find that the case was reversed and remanded. There are lots of subtle overtones suggesting that this judge has a high threshold for deciding that a rape really was a rape and, no, she wasn't 'asking for it.'
Besides the parts you quoted, I am thinking of:
Though inquiries into the maturity of individual minors are, as we said earlier, bound to be fraught with uncertainty, a jury should be able to sort out the difference between an employer’s causal contribution to the statutory rape by its employee of a 16-year-old siren (if that turns out to be an accurate description of Doe) and to similar conduct toward, say, a 12-year-old.
Considering it is never discussed whether or not she was welcoming the advances, it seems a bit strange that the opinion keeps considering how the case would be different if she were welcoming the advances. Almost as if the judge would rather that be the case, just to make the judgement more black and white.
But hey, I'm no law student. Just a tipsy physics grad student who should be sleeping.
Posted by
nap |
2:46 AM
According to the court, she did welcome his advances. Page 12 of the opinion...
What is uncontested is that Nayman did not commit forcible rape. But he committed statutory rape, that is, intercourse with an underage person, which is made a crime because of a belief that below a certain age a person cannot (more realistically, is unlikely to be able to) make a responsible decision about whether to have sex.
The factual record is a bit light in the opinion, but I'm assuming it's the same old story: creepy older guy shows attention to young girl, young girl falls for older guy, older guy is a slimeball and sleeps with young girl, parents get involved/guy-girl break up, litigation.
To me, it seems like Posner is just looking at the legal situation from a variety of viewpoints. He recognized earlier in the opinion that measuring maturity is often difficult. It's not like people have a gauge on their forehead that says when they are mature enough to consent.
But he also realizes that a jury is exactly the body to make that kind of determination in this situation. And remember the situation. The key is the employer's duty. I think that Posner is saying that the employer may have a greater duty in the case of a 12 year old (child labor laws be damned to make this point) than a "consenting" 16 year old.
Posner is a pragmatist. He knows that not every advance is per se harrassment (the blushing violets comment). Some would argue that it should be, just so that option is available to protect people from that "harrassment". Posner thinks that is unrealistic.
I'm glad to know that you find time to read my blog before passing out after a few pints.
Posted by
Steve |
5:10 PM