Comment by jjoonathan
13 years ago
The lawyer only ever saw cases that got to the point of needing a lawyer. Police exercise discretion as part of their job and I have trouble believing that silence (and the suspicion it creates) always pays off.
Example: the neighbors see/hear you having rough sex with your wife and report it as abuse. The police knock on the door, you have two options:
A) Explain (better: let your wife explain) that the neighbors probably heard you playing around and promise to be more discreet in the future. The police agree that more discretion = better and leave.
B) Wall of silence. The police take you in just to be sure. Your wife tries to testify in your favor at the trial but everyone thinks she's just making excuses for an actually abusive boyfriend (because that happens). Your life is ruined by the conviction, maybe her life is too. Even if you don't get convicted, rumors will spread and your time and money will be wasted on legal matters.
Am I being naive or was the lawyer overstating his argument? Strategy A is strictly worse than B if the case goes to court, but that still means that B could be the better strategy before you've been arrested.
> Your wife tries to testify in your favor at the trial...
Why would she do that? The only way you've gotten this far is because she's pressing charges.
No, the AG is pressing charges, ostensibly on her behalf, because everyone thinks she was in denial about the abuse. Alternatively, even if everyone agrees she consented, consent isn't a legally recognized defense to all forms of battery and you also have to consider sodomy laws: in the hands of a conservative judge/jury, what you were doing actually was illegal, even though you were consenting adults and nobody got (permanently) hurt, which is the standard most "reasonable" people go by nowadays.
IANAL and the little I know about the intersection of kinky sex and law comes from a single presentation I attended years ago during college. Please correct me if I'm wrong, but I'm fairly certain I have the broad strokes drawn correctly.
As someone active in the kink scene, the current legal situation seems to be:
Sadomasochism is probably illegal in most states, but no prosecutor seems eager for the shitshow that would happen if they tried to prosecute something that was clearly consensual.
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Ok...I was generalizing from a friend's somewhat related experience. He was asked and chose not to press assault charges in MA and that was the end of it.
On second look, it seems that the state has a lot of discretion in these cases.
IANAL, but in some states there are certain legal mechanisms that prevent domestic violence victims to back off and drop their charges (as a "safeguard" against intimidation leading to dropped charges).
I wouldn't be surprised if some states had laws that more or less forced the potential victim to go through the trial even if she intends on testifying in your favor. I dunno. Just sayin'.
The state presses criminal charges, not the "victim".
The state presses charges, not the "victim". For an example, see the recent proceedings around Sheriff Ross Mirkarimi in San Francisco.
B is still obviously the better option. Providing evidence that ratchets only one way can never help.
They'd never be able to convict if the both of you refused to testify. There'd be no evidence.
The neighbors heard screams and the doctors found bruises. Also, additional witnesses came forward and testified to a history of bruises. Also, she broke her arm falling down the stairs a few months ago -- but by now the picture is coming together and everyone "knows" what that "really means". That's plenty of evidence to fit either the "abusive husband" story or the "illegal sex" story. Either way, the worst case is that you're a felon! (I'm including battery-to-which-consent-is-not-a-defense under "illegal sex" and battery can be a felony.)
I freely admit that this is a worst case scenario: a court in SF isn't likely to convict on the basis of "illegal sex", but maybe you were traveling; hotels have notoriously thin walls and some places in the USA take a much dimmer view of this kind of thing.
None of this is relevant to my original point. Even if you're acquitted your "wall of silence" will have cost you time, money, and reputation, making B worse than A UNLESS you condition your expectation on the case going to court, which you shouldn't, because the point in time when you decide B vs A happens before going to court is a foregone conclusion.
Silence will lead to court. You will have a lawyer, preferably a competent one. He/She will advise both you and your wife and you'll present a testimony that won't put you in jail.
Talking to the police has a high certainty they'll present your statement, or part of it, as admission of guilt and that leads directly to jail.
I'd rather waste money than my life. Me and my wife can later sue our neighbours for damages and try to get our money back from them. But I can't sue them to give me back jail time.
How would talking to the police help, though. Under your narrative the police don't believe your spouse's denials anyway.