Author Archives: Charles McKinney

Affluenza: The Criminal Justice Infection

In Texas, a 16-year-old stole liquor from Walmart and drove with a blood-alcohol level 3 times the legal limit. He killed 4 people. His sentence: 10 years’ probation and treatment (at a posh clinic). The lawyers defending the 16-year-old Texas youth argued that their client suffered from “affluenza” which usually refers an acquired irresponsibility based on years of extraordinary privilege. In other words, the young man had been so pampered
that he lacked the ability to appreciate the likely consequences of his actions. Really? My experience informs me that no 16-year-old African-American (even in Texas) would be treated as leniently.

Sadly, affluenza has so infected and perverted state criminal justice systems that lawyers confidently extract lenient treatment for their clients who are white, wealthy, employed, and come from “good” families. Typically, the young African-American or Hispanic accused is poor, unemployed, and from a broken home. The white client is more likely to go home. The minority client is more likely to go to prison. At the state level, there can be gross disparities from state to state, from counties within the same state and even within the same courthouse.

It is time to conduct a national review of sentencing procedures among and within the various states and to push for more enforceable fairness in sentencing. At the Federal level, the United States Sentencing Commission (USSG) has developed a maze of regulations designed to produce relative uniformity in sentencing for federal crimes.
Until something like the USSG is adopted by the states, the affluenza epidemic will continue. The burden will continue to be on local counsel to vigorously defend a client’s constitutional rights and aggressively examine whether the client is being treated fairly regardless of race or socio-economic status. We cannot accept what too often appears to be the norm.

Minister/Member Sex: Church May Not Be Liable For Adult Consensual Sexual Encounter.

Is the church liable when an adult member has a consensual sexual relationship with one of the church’s pastors? This question was addressed first to the Common Pleas Court in Franklin County, Ohio when a member sued the church claiming she was “taken advantage of” by a sexual encounter with a former pastor. She claimed the church was liable for the acts of its former pastor who apparently had a history of such encounters. It was not clear the then current pastor had advance notice of the former pastor’s history. The Common Pleas Court ruled in favor of the church and the member appealed.

The Tenth District Court of Appeals held that the church was not liable because the former pastor’s conduct was outside the scope of his pastoral duties, and was not reasonably foreseeable. The Court noted that the act was planned in advance, did not occur on or near church premises, and did not arise out of a counseling session, but occurred when the pastor invited the member to his apartment, while telling her his wife was not home.

Further, the member’s claim that the former pastor “took sexual advantage” of her, fell short of alleging she was incapable of consenting, so the former pastor was not individually liable. Consequently, the church could not be held liable. DiPietro v. Lighthouse Ministries, 159 Ohio App. 3d 766 (2005).

So, the answer to the question is: it depends on the facts. The DiPietro case should be viewed with caution. The
Appeals Court took great pains to distinguish the facts before it from a situation in which a member actually is taken advantage of when not in a position to refuse consent. Also, the Court separated the place of the sexual encounter away from church property or from a church counseling session.

Teacher/Student Sex: Is It Always Unconscionable?

It seems like every week, another teacher, coach, or school employee is convicted for engaging in consensual sex with a student. The crime is designated as a third degree felony punishable by up to five years in prison. The offender is often a young person who has had no previous criminal history and otherwise is regarded as an upstanding law abiding citizen. In addition to possible imprisonment, the teacher or coach loses his/her professional license, becomes a convicted felon and is subject to designation as a sexual offender or sexual predator. Such designation may involve up to a lifetime requirement to register as a sexual predator with the local Sheriff as well as community notification.

In 1974, the Ohio Legislature enacted Ohio Revised Code § 2903.07(A)(7) with the still noble intent to guard against the vulnerability that adolescents and children have when taken advantage of by adults who are in a position of trust and authority over them. Usually, proof of a culpable mental state is required to establish criminal liability. Some laws however, impose criminal liability for specified conduct regardless of mental state or intention. R.C. 2903.07(A)(7) is one such law. It applies not only to teachers and coaches, but to anyone who occupies a position of trust and authority over students. This may include school employees such as teachers’ aides, floor monitors, bus drivers, or security guards. The conduct prohibited by R.C. 2903.07(A)(7) consists of two distinct elements. The first is that the offender engaged in sexual conduct with another person. “Sexual conduct” is defined broadly enough to cover all conceivable forms of sexual activity between consenting persons.

The second element is that the other person is not the spouse of the offender, when (a) the offender is a teacher, administrator, coach, or other person in authority at a school in which the other person is enrolled or attends; and (b) the offender is not enrolled in, and does not attend that school. Once those two factual elements are
established, a violation must be found and the actor’s intent when engaged in the sexual conduct with the other person is not relevant. The seemingly harsh penalties follow. Some discretion is preserved for the judge who hears the evidence.

A judge can consider certain mitigating and/or aggravating circumstances before imposing sentence. Often, family friends and loved ones of the convicted school employee are shocked by the apparent severity of the sentence compared to what many regard as a not so serious offense especially when the offender and the student are close in age, the student is sexually active, appears to be sophisticated in the ways of the world and may even have been the instigator of the sexual conduct. In some cases, the school employee may be more “vulnerable” than a street-wise student.

Without in any way condoning or minimizing the seriousness of the offense, it may be time to examine whether the underlying premise of the law should apply as broadly as the Legislature intended in 1974. Then as now, the
Legislature was rightly concerned about protecting individuals in a variety of situations where another might take “unconscionable advantage” of that individual. What may have appeared to be an “unconscionable advantage” almost 40 years ago may be very different in the present social context. It is at least conceivable that there will be circumstances where the school employee did not take unconscionable advantage of a student. Consequently, it might be worthwhile to question whether and to what extent an otherwise “good person” should suffer the full brunt of the statute’s punishment when the student may not be as blameless or innocent as the Legislature may have presumed. Mental health experts, who may have opined about the inability of adolescents to make mature informed decisions
in 1974, may have a somewhat different view today. At any rate, the number of people affected warrants a second look at this statute.

Collateral Consequences: The Side-Effects of Criminal Convictions

Often people plead guilty to a criminal charge to “get it over with”, save time, or money. Most of us know that the direct results of a criminal conviction might range from fines to imprisonment. The indirect/side effects are less known. A criminal conviction can have far reaching consequences in the other areas of your life. For instance, a criminal conviction can block a job opportunity, disqualify you from voting, stop certain benefits, or make you ineligible for public office. Before pleading guilty, or risking a conviction at trial, it is important to understand the side effects of a criminal conviction.

Ohio has an on-line compilation of collateral consequences, prepared under the auspices of the Ohio Justice and Policy Center and the State Office of the Public Defender. See Civil Impacts of Criminal Convictions under Ohio Law, available at http://opd.ohio.gov/CIVICC.

PERSONAL INJURY: Nursing Home Negligence

More and more we have to entrust our elderly loved ones to nursing homes. Unfortunately, nursing home injury and neglect claims are on the rise. It may be necessary to file a lawsuit to stop, or to recover money damages for nursing home negligence or abuse. Some common lawsuits against nursing homes include, but certainly are not limited to, neglect, abuse, bedsores, assault, falls and fractures, failure to diagnose or treat medical conditions, and even wrongful death.

If your loved one has been hurt or if you recognize the signs of nursing home negligence or abuse, time is of the essence. Such claims are subject to laws known as statutes of limitations that require a lawsuit to be filed within a certain time. Failure to file the lawsuit in the specified time will result in the claim being barred forever.

CRIMINAL DEFENSE: Fewer Mandatory Minimum Sentences?

As part of a comprehensive prison-reform package, U.S. Attorney General Eric Holder, announced that he was changing the charging policy of federal prosecutors. The goal is to reduce the number of individuals who must face unreasonably long prison sentences. Under the reforms, federal prosecutors will be directed not to charge low-level, non-violent drug offenders without ties to gangs or large-scale organizations, with offenses that impose severe mandatory sentences. As a result, the more severe penalties will be reserved for serious, high-level or violent drug traffickers.
It has long been recognized that the U.S. prison population is disproportionately poor, African-American and/or Hispanic. General Holder’s reforms affect only federal crimes but he urged states to follow his approach. The reforms will relate to future cases only and will not by themselves, reduce current sentences.

CHURCH DISPUTES: Civil Courts Limited

Generally, civil courts lack jurisdiction to hear “ecclesiastical” disputes within a church, although courts may hear church disputes that are “secular” in nature. The question of who will preach from the pulpit of a church is an ecclesiastical question, review of which by the civil courts is limited by the First and Fourteenth Amendments to the United States Constitution.

In determining whether courts have jurisdiction over church disputes, courts apply a two-tiered analysis. First, courts must look at whether the church is hierarchical or congregational. If the church is hierarchical, civil courts generally lack jurisdiction to hear the dispute. However, if the church is congregational, a civil court has jurisdiction only to determine the narrow issue of whether the decision concerning the ecclesiastical dispute was made by the proper church authority.

EMPLOYMENT DISCRIMINATION: Unlawful Retaliation

Employees who oppose unlawful employment discrimination, participate in employment discrimination proceedings, or otherwise assert their employment rights, are protected from retaliation. A person is protected against retaliation for opposing perceived discrimination so long as the person had a reasonable and good faith belief that the opposed practice was unlawful.

Several laws also prohibit retaliation against someone who is so closely associated with the person exercising his/her rights, that it would discourage a person from pursuing his/her right to oppose unlawful discrimination. For instance, it would be unlawful to discriminate against you, if your daughter, who is also an employee, opposed an unlawful discrimination practice by the employer.