Patterico's Pontifications

12/12/2011

Another Example of How Lawyers Ignoring the Plain Meaning of Language Go Astray

Filed under: Court Decisions,Crime,General — Patterico @ 12:30 am

Here’s an interesting little legal issue — one that is apparently easier to resolve properly if you have not had legal training.

California Penal Code section 288.7(a) reads as follows:

Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life.

That simple language in bold is apparently too difficult for some judges to understand.

Our hypothetical defendant is 19 years old. The evidence shows that he met the victim at her 10th birthday party. One week later, he had sex with her. Is he subject to the penalties provided by this law?

As a common sense person, dear reader, you are saying: of course he is! The victim was 10 when he had sex with her. She just had her 10th birthday! And the penalties apply if the victim is 10 or younger. What’s the problem?

It turns out that at least one California court saw a problem. That court said “10 years of age or younger” means “exactly 10 years old, not one day more” . . . or younger. In other words, the day after the victim’s birthday, she is no longer “10 years of age of younger” . . . according to these legal geniuses.

That conclusion is, of course, absurd. If you asked this girl how old she is, she would say: “ten.” If you asked her mother how old she is, she would say: “ten.” If you asked all her friends and relatives how old she is, they would say: “ten.” If the statute says the victim must be “10 years of age OR younger” and she is “10 years of age,” then the statute applies.

I don’t care what the legislative “intent” was. I don’t care about the “rule of lenity” or any other mumbo jumbo. Not in this case. Because here the language is clear. The girl is ten. The statute applies. Next case!

This is what I mean when I stress that “legislative intent” should not matter to the interpretation of a statute. This court actually bemoaned the fact that there was no legislative history available to help out. The court also noted that several other cases in other jurisdictions had resolved similar issues in the same silly way (as well as several that resolved it properly). The court further noted that, in many cases, “courts have been able to resolve the issue on the basis of an illuminating legislative history.”

Legislative history. Aaaaaargh!

So, let’s say a legislator didn’t like the law, and was pushing to make the victim’s age “11 years or younger” before harsher penalties kicked in — but ended up voting for the statute in a pander to the public. He could simply have a staffer slip something into the legislative record talking about how “10 years or age or younger” really excludes anyone who is 10 years and a day. And one suspects certain idiot judges would pay attention to that kind of dishonest crap.

Not me. To me, the words mean what they mean. Trying to divine some “legislative intent” from clues in speeches and notes from committee meetings is a fool’s errand. The plain language should control.

Luckily, sanity may win out. The California Supreme Court has granted review and the case may not be cited. At least one other court has come out with a sensible ruling going the proper way.

But when you throw common sense out the window, the law can take the most obvious, plain meanings of words, and twist them into something that would make the man on the street furrow his brow and say “What now??”

It’s not always lawyers who do this, mind you. But they seem to be mighty good at it.

181 Responses to “Another Example of How Lawyers Ignoring the Plain Meaning of Language Go Astray”

  1. Stupid lawyers!

    Patterico (f724ca)

  2. Truly it is why the people will take the time to shoot the lawyers and politicians. In time. It’s a huge reason they fought for the second amendment. Oh yeah, we know the enemy.

    Curtis (473960)

  3. Actually – it is not so clear to me that the judge was wrong. Yes, kids will claim to be ten until their eleventh birthday – but that is because they are rounding down. Rounding down does not make ten-years-and-eleven-months equal to ten years – it just means that people approximate.

    If somebody gave you ten dollars to spend and told you that you could buy anything for “ten dollars or less,” you would have no trouble recognizing that an item priced at $10.05 was out of your price range, even though people are likely to label it as a “ten-dollar item.”

    The difficulty is that most legal age criteria are phrased in terms of such-and-such and age and above, where the birthday is a clear delimiter. This is possibly the first case I’ve heard of a law which spoke of “such-and-such an age or younger.” It would have been much more sensible to phrase it as something like “under ten years.” The fault lies with the legislature, which wrote an ambiguous law. If the courts consistently hold that “ten or younger” means “less than ten-years-and-a-day” then that IS what the law means, however logical the argument you can construct that it shouldn’t be.

    FuzzyFace (63c7e4)

  4. Somewhere, Roman Polanski is breathing a sigh of relief.

    Icy (58301d)

  5. Why even get all activist and say that she’s ten years old for an entire day?

    She’s younger than ten, then ten for a yoctosecond, and then older than ten. Just read the plain language of the law.

    Nels (905f0f)

  6. torches and pitchforks to the rescue.

    sickofrinos (44de53)

  7. Fuzzy Logic:
    Actually – it is not so clear to me that the judge was wrong. Yes, kids will claim to be ten until their eleventh birthday – but that is because they are rounding down. Rounding down does not make ten-years-and-eleven-months equal to ten years – it just means that people approximate.
    — So now anyone between the age of 17 years 1 day and 17 years 364 days should be allowed to see an R-rated movie unaccompanied by an adult; right?

    If somebody gave you ten dollars to spend and told you that you could buy anything for “ten dollars or less,” you would have no trouble recognizing that an item priced at $10.05 was out of your price range, even though people are likely to label it as a “ten-dollar item.”
    — That’s an apples to oranges comparison. It is common parlance to speak of “my 40th year”, for example.

    It would have been much more sensible to phrase it as something like “under ten years.”
    — Granted. Although, in the case of this particular law “under sixteen years” would probably be more appropriate.

    The fault lies with the legislature, which wrote an ambiguous law.
    — Yes, the responsibility lies with the legislature; however, as Patterico noted, the law is hardly “ambiguous”.

    If the courts consistently hold that “ten or younger” means “less than ten-years-and-a-day” then that IS what the law means
    — Gee, and here I thought we all were in agreement that it is the responsibility of the LEGISLATURE to write their laws in clear language, thereby making it NOT the job of a court to determine the legislature’s “intent”.

    Icy (58301d)

  8. Question for FuzzyFace: Picking up on the point by Nels, what happens if a girl that had been born at 6:00PM is sodomized at 6:01PM on her 10th birthday? Is it then no longer a felony? Who makes the determination that the entire day counts as “10 years of age”? The court? Why? Is the word “birthday” buried somewhere in the language of the law?

    Icy (58301d)

  9. ‘winning the future’ is wrong with these people, just bring on the Zombies, so Tallahassee and Columbus, Ohio, can dispatch them.

    narciso (87e966)

  10. Ever met a kid who said they were “something and a half”? Seems like an ambiguous boundary problem, and no matter how many times one says it, not ‘clear’ on the boundary. Otherwise we get the absurd result that a number that is greater than ten is less than or equal to ten. The easy way to capture this situation would be to just say “under 11.”

    salk (12c32f)

  11. It is clear that salk intends for there to be open season on children one minute after their 10th birthday until the moment prior to their 11th birthday.

    JD (554e77)

  12. In these United States of America it is the norm to refer to a person as “X” years old until they are “X+1″. Yes, people will say things like “10 and a half” or “almost 11″, but if you are filling out a form that asks how old you are, the typically expected answer is “10”, not “10 yrs, 4 months”.

    I think anyone who really wants to argue the point would prefer a world where everyone has a team of 3 lawyers looking over their shoulder all day and night to give them advice.

    Years ago I new a certain fellow who was quite concrete in his thinking, having lived many years with chronic schizophrenia managed with medication. When he heard a “lawyer” (law professor, actually, FWIW) was teaching an adult Sunday School class, he asked how this could be, since Jesus said, “Woe to you lawyers”. We explained to him the difference in what is meant by referring to “lawyers” in the New Testament and today.

    But when subverting common sense as in this example, maybe he had a point.

    MD in Philly (3d3f72)

  13. I agree that wording the law “under 11″ would have removed the “ambiguity”, but the ambiguity is made by using the phrase in a way that it is normally not used.

    As Icy suggests, the bigger problem with this law is the use of “10” as opposed to “12” or more.

    10? only 10? Is 11 a felony with a smaller sentence? A misdemeanor?

    MD in Philly (3d3f72)

  14. I think that child molesters should be turned over to Apaches who still remember the old ways. Blinding, removal of the tongue and ears, castration, hamstringing, cutting the elbow tendons and then left out in the Mojave to await the Grace of the Great Spirit.

    Nonetheless, I blame the legislature not the judge. The Governor, too, who signed the stupid version. Judges deprive people of life, liberty and property according to law. Give them a law that they must enforce.

    One of my great pleasurable memories as a lawyer was looking at a judge straight in the eye, crossing my arms, and saying on the record “There is no wiggle room [discretion] here”.

    nk (cd8f6b)

  15. I also the blame the voters who did not vote a lawyer into the legislature who knows how to write “a child who has not yet attained the age of eleven years”. Vote for nogood legislators, get nogood laws.

    nk (cd8f6b)

  16. And now you know why I drink. 😉

    nk (cd8f6b)

  17. “It is clear that salk intends for there to be open season on children one minute after their 10th birthday until the moment prior to their 11th birthday.”

    This kind of stupid has to be on purpose. Please tell me it is.

    “I think anyone who really wants to argue the point would prefer a world where everyone has a team of 3 lawyers looking over their shoulder all day and night to give them advice.”

    Took just a second to think of writing it as “under 11.” I’ll be happy to take the pay of three lawyers day and night for insight that though.

    salk (746e5c)

  18. And this is the first time this has come up?!

    Surely, this is not the only law with this construction. One would think that the term of art has been well adjudicated by now, but apparently not. But soon, one hopes.

    Kevin M (563f77)

  19. nk–

    More to the point, why didn’t one of the many lawyers on staff bring this up?

    You don’t actually need to have a lawyer elected to have a lawyer reviewing legislation, and I can think of a lot of reasons to elect people from a variety of professions.

    Kevin M (563f77)

  20. salk

    This kind of stupid has to be on purpose. Please tell me it is

    Parents of young children, especially girls have little wiggle room on certain subjects and may have misread the intention of your comment

    To me your comment seemed lamenting the sloppy language on a serious subject or you have programming training that requires more definition of limits

    EricPWJohnson (2a58f7)

  21. Kevin M, #19,

    Because they are patronage workers, worthless as lawyers, who got their jobs because they helped get their bosses elected? A staff lawyer likely wrote this law while his boss was at a reelection fundraiser.

    nk (cd8f6b)

  22. Which is why we should elect more plumbers to the legislature. They’d HAVE to hire good staff lawyers.

    Kevin M (563f77)

  23. I was mocking your mendoucheity, Salk.

    JD (554e77)

  24. Kevin #22.

    Or even hire plumbers as staff lawyers. The law is a practical thing. A plumber would know how to get the job done.

    nk (cd8f6b)

  25. Ever met a kid who said they were “something and a half”? Seems like an ambiguous boundary problem, and no matter how many times one says it, not ‘clear’ on the boundary. Otherwise we get the absurd result that a number that is greater than ten is less than or equal to ten. The easy way to capture this situation would be to just say “under 11.”

    How old are you, salk?

    On what date were you born?

    Are you having to think about how to answer these questions?

    Are you a lawyer?

    Patterico (f724ca)

  26. “To me your comment seemed lamenting the sloppy language on a serious subject or you have programming training that requires more definition of limits”

    This is a discussion of the question of how the law should be interpreted or rewritten. I’m proposing a simple, though differing, position in this discussion, including with a potential solution. This is “mendoucheity” enough to get a comment calling me wanting a bunch of kids Sanduskied. Thanks Internet!

    salk (456276)

  27. “How old are you, salk?”

    Somebody can answer this question by saying “10” but have more than 10 years of age. That’s the ambiguity. Should be rather simple for an enterprising legislator to find examples of this ambiguity, name an act after a victim, and get bipartisan support to change the law to fix this.

    salk (456276)

  28. “How old are you, salk?”

    Somebody can answer this question by saying “10″ but have more than 10 years of age. That’s the ambiguity. Should be rather simple for an enterprising legislator to find examples of this ambiguity, name an act after a victim, and get bipartisan support to change the law to fix this.

    How old are you, salk?

    Patterico (f724ca)

  29. Ten years or age or younger means under eleven

    EricPWJohnson (2a58f7)

  30. By “salk’s” metrics, if you introduce yourself as being 40 years old, that would only be true for the split second where it is exactly 40 years to the moment from the time you were born, and only Allah knows how you would define that moment.

    JD (a55faf)

  31. Is 25 to life a large sentence?

    AZ Bob (7dbcdc)

  32. JD

    And that ould also depend on knowing EXACTLY what time you were born

    EricPWJohnson (2a58f7)

  33. I agree with those who find the rationale in the court’s opinion defensible, though I would have come down the other way. Has the issue come up in other contexts? Presumably if so we would know that (or be discussing something else)

    Manfred (22397b)

  34. nk,

    I agree with you and salk that it could have been written so that this discussion would not be necessary,
    but,
    do you think the law is “clear enough for enforcement” given the normal use of the English language?

    I think anyone who really wants to argue the point would prefer a world where everyone has a team of 3 lawyers looking over their shoulder all day and night to give them advice.”
    Took just a second to think of writing it as “under 11.” I’ll be happy to take the pay of three lawyers day and night for insight that though.

    Comment by salk

    The “insight” was that there are people who quibble about the normal use of the English language. And yes, one could make a lot of money thinking of things that people could quibble about, like needing to warn people that hot coffee might be hot.

    I wonder, should I put up signs saying it is possible to trip and hurt oneself on my sidewalk, to warn that on occasion mushrooms grow up in the grass and may be poisonous, that raccoons climb up and down our tress and they might have rabies?

    If you are talking to a child and ask how old they are, and they say 10, you may, like me, ask when their birthday is. I may respond to them with something like, “So, you just turned 10″, or, “So, you’re almost 11″, but I do not say, “So, you’re really not 10, you are 10 years, 3 months, and 5 days.”

    MD in Philly (3d3f72)

  35. 24.Kevin #22.

    Or even hire plumbers as staff lawyers. The law is a practical thing. A plumber would know how to get the job done.

    Comment by nk

    nk, but then you need to consider whether the plumber is the member of a union with work rules in the contract written by a lawyer limiting what the plumber could and could not do.

    MD in Philly (3d3f72)

  36. MD in Philly,

    I am 100% with Kevin M.’s plumber suggestion. Get the job done. In this case, put away the child molester.

    I disagree that the judge is solely to blame. This is California after all. Maybe the judge is pedophile friendly but … it seems to me that whoever passed that law was at the least pedo phile indifferent.

    nk (cd8f6b)

  37. And who says contracts need be written by a lawyer?

    nk (cd8f6b)

  38. BTW,

    I have tried to navigate California’s penal and sentencing codes as long as I have been commenting here, and they make Lousiana’s look good. They are a horrific mess of common law offenses with at-the-montent-political-concerns added on.

    nk (cd8f6b)

  39. I don’t blame the defense lawyer for making this argument, but I do blame the appellate court for buying into it, and the state legislature for not having anticipated this problem.

    Indeed, from the point of view of the criminal defense lawyer, it’s one’s responsibility to find and exploit every possible defense or objection that the statute can possibly accommodate. To do less would be to fail to diligently represent one’s client within the bound of the law.

    The legislature could have foreclosed this defendant’s argument by more careful drafting. Compare Tex. Penal Code § 1.06 (Vernon 2011), entitled “Computation of Age,” which simply reads, “A person attains a specified age on the day of the anniversary of his birthdate.” In Phillips v. State, 588 S.W.2d 378 (Tex. Crim. App. 1979), Texas’ highest criminal appellate court relied on section 1.06 in confirming that yes, a criminal statute which by its terms concerned crimes against children “fourteen years of age or younger” did indeed apply to “a child [who was] fourteen years, one month and five days old.” But it was only on rehearing that the court reached that (screamingly, obviously) correct decision.

    Beldar (65378a)

  40. From the Phillips case, here’s the Texas Court of Criminal Appeals’ reasoning:

    [Texas Penal Code section 1.06] was obviously an intent on the part of the Legislature to abolish the old common law rule that a person attains a given age at the last moment of the day preceding the anniversary of birth, not as a limitation on the period of time one remains at a given age.

    [Texas Penal Code section] 22.04, [the section criminalizing “injury to a child,” upon which Phillips’ conviction was based], in protecting a child “14 years of age or younger,” is the only statute in the Penal Code using this phraseology. There are, however, ten statutes in the Penal Code where the term “younger than” a certain age is used. Had the Legislature intended to protect only those children under fourteen years of age, it would have been a simple matter for them to have so provided by the use of a phrase “younger than.” To say that the Legislature deviated from the use of the phrase “younger than ____ years of age” used in the other statutes in Sec. 22.04, supra, so as to include a class of people who were injured only on their birthdate does not make sense. Sec. 1.06 does not lend itself to such interpretation.

    The dissent was by a judge named Clinton (no relation, so far as I know, to the former president or current SecState, but yes, he was a Democrat). He argued that the Legislature might well have intended not to protect those older (by even a day) than fourteen years of age, “[i]n these times of earlier maturity of children, at least as seen by most.” That’s pretty despicable, IMHO.

    Beldar (65378a)

  41. annnd you are ten until your eleventh birthday

    EricPWJohnson (2a58f7)

  42. all 365 days

    EricPWJohnson (2a58f7)

  43. People would argue that if the legislature used days like 3,650 days or younger someone somewhere would argue that the day of birth doesent count as a full day

    EricPWJohnson (2a58f7)

  44. It would have been better if the legislation had been written to be more specific, such as “not having attained their 11th birthday”.
    It is just unfortunate that the Legislature is not able to access legal scholars in drafting such laws – this disparity of resources must be corrected…
    Oh, what’s that?…You say that the legislation was written by a lawyer?
    Well, there you are…must have been someone Forrest Gump’s mother knew.

    AD-RtR/OS! (5bf382)

  45. A perhaps not so interesting example of legal specificity in application:

    CA Firearms Law specifies that a person may not take possession of a handgun within Thirty-days (30) of a previous purchase (One Gun a Month rule).
    This is a convenient short-hand, in that the DoJ will not approve any DROS (Dealer’s Report of Sale) filing if the file time/date is within 720-hours of a previous purchase time/date.
    This was pointed out to me by the DoJ when a DROS I filed for a customer one-month (30-days) after his previous purchase was rejected because it was 4.5 hours short of 720 (his previous DROS was at 1400hrs, and the new one was filed at 0930hrs, 30-days later).

    I should have filed an appeal of this action in the court of this judge, as I’m sure he would have been sympathetic and would agree that the spirit of the law had been met.
    As it was, it was just easier to file another DROS, and eat the additional cost.

    AD-RtR/OS! (5bf382)

  46. By the way, this isn’t an instance of “rounding up or down.” There is no rounding either way. Instead, it’s a ratchet: You stop being ten the moment you turn eleven, and it’s not tied to the hour of your birth but the day of your birth, so midnight of the 365th day you’re ten is the moment the ratchet clicks up a notch, and then you’re eleven. It stays there — exactly there — until you’re twelve.

    Beldar (65378a)

  47. (Yes, local time, including Daylight Savings.)

    Beldar (65378a)

  48. And now you know why I drink.
    Comment by nk — 12/12/2011 @ 6:57 am

    — Living in illinois, where the taxes are high and the governors reside in prisons named after their fathers, isn’t enough of a reason?

    Icy (58301d)

  49. Well jeesh Icy maybe he has a high tolerance for that.

    Dohbiden (ef98f0)

  50. Luke 11:52
    English Standard Version (ESV)
    52Woe to you lawyers! For you have taken away the key of knowledge. You did not enter yourselves, and you hindered those who were entering.”

    — Dang! Would any of the lawyers here actually wish to teach Sunday School?

    Icy (58301d)

  51. Woe to the molestor whose victim was born on February 29th!

    Icy (58301d)

  52. C’mon Icy, everyone knows (even Judges) that 2/29 birthdays are celebrated on 2/28 on non-Lear Year years – last day of the month, and all that!

    AD-RtR/OS! (5bf382)

  53. Freudian slip….
    non-Lear Leap Year…

    AD-RtR/OS! (5bf382)

  54. Funny stuff, gradually becoming not so funny-

    Yes, Icy, that’s the “Woe to lawyers”, but it is refering to those who are expert in the Law of Moses, the Prophets, and the Writings but misapply them. being a member of the bar does not (automatically) get one in trouble.

    AD- I don’t know about that. Anybody who thinks a child 10 years and 7 months old is “10” might make scruples if only on the basis of “everyone knows” if not specified in the law somewhere.

    One really scary thing is that the people who wrote this law are probably not much different than the people that wrote the 2,000+ page ObamaCare Bill that we were going to learn what was in it after it passed.

    Re Beldar at #39 and 40- Thank you for the research. I think everyone pretty much agrees it would have been earier if the law was written “under 11″ to avoid this problem, and it is worthwhile to see how a similar thing was worked out elsewhere.

    I believe I understand your point about the defense attorney and the judge, which is one thing I wish was different somehow.
    A hypothetical. Say in this instance the lawyer makes the argument and the judge accepts it. What happens until it is appealed? Do the standards for setting bail change? Is it possible the guy would stay locked-up with the charge as it was brought, but now can be released because it is a lesser charge? If so, what happens if he attacks another child while out? Is the defense attorney content and at peace that he “played the game” right even with that outcome? Does he hate the unintended consequence and give up criminal defense? Does he decide to never employ those tactics again and dare anyone to bring charges of “inadequate lawyering”?

    MD in Philly (3d3f72)

  55. Anybody who doesn’t think a child 10 years and 7 months old is “10″ might make scruples if only on the basis of “everyone knows” if not specified in the law somewhere.

    Sorry. That is what I intended to write.

    MD in Philly (3d3f72)

  56. The problem with writing laws to avoid the pedant is that you’ll never be done.

    This is what we pay judges to handle properly. The law meant under eleven when they said ten years old. Either we require judges to have discretion or we will never have a reliable justice system. PJ Kline is not showing a capacity for interpreting the law with good sense.

    Dustin (cb3719)

  57. Is the defense attorney content and at peace that he “played the game” right even with that outcome?

    The attorney will no doubt say (as some have said here) that the legislators were the cause of the problem; also, that the bearer of ill tidings should not be vilified; and keep that SOB away from *my* children.

    You must understand that attorneys are in the practice of law. Justice is left for a higher being (or at least a higher court). By the same token, the police have gone from “peace officers” to “law enforcement officers”.

    roy in nipomo (d31d1e)

  58. Isn’t the whole point of legal education to drum common sense out of you? As a non-lawyer who has daily dealings with lawyers, it sure seems that way.

    Joe Miller (160e2d)

  59. Also, the defense attorney’s job is to vigorously defend his client. If that includes proposing an interpretation of language which is possible but unlikely, then failing to do so may actually violate his responsibilities to his client.

    The judge, on the other hand, is not responsible to either party in the case and so should be able to reject arguments which stretch the law.

    aphrael (1fc48e)

  60. “…should be able to reject arguments which stretch the law.”

    And, when they can’t, they’re placed on the also-ran list for the Boxer – Dumb as a Brick Award!

    AD-RtR/OS! (5bf382)

  61. legislators intended to use the age of 10.
    Any ambiguity that is exploited by a lawyer should be dealt with by applying the overwhelmingly common practice with age. Which is to “turn 60″ which is like the “ratchet” example Beldar used.

    By the way, who the hell put the age at 10?
    I could see arguing over 14, 15, 16 in the legislature; but 10?
    Huh.

    SteveG (e27d71)

  62. I could see arguing over 14, 15, 16 in the legislature; but 10?
    Huh.

    Comment by SteveG — 12/12/2011 @ 1:25 pm

    It’s California, Steve G.

    nk (1346e5)

  63. Obviously the poor phrasing is part of the “Lawyer’s Full Employment Act” requirements; that’s why it doesn’t say “under the age of eleven(11)”. The legislature and the judge both get a big scoop of blame for this legal mess; the defendant (was he capable of understanding the distinction being made?) should have gotten … what does he get?

    Ah, read the link. Ten, plus 150 to life, after the confusing date charge is eliminated. No harm, no foul?

    The court’s discussion of the various ways of understanding … I’m so glad I’m not a lawyer.

    htom (412a17)

  64. nk

    I forgot.

    Hollywood. Home of the industry that gives us “Toddlers and Tiaras”

    I guess I should be thankful they went for 10… it might have been worse.

    California is great. You could get in worse trouble over a Fish and Game violation

    SteveG (e27d71)

  65. Sorry, Patterico, it’s pretty clear to me that a week after her birthday she was 10.02 years old, i.e. older than 10 years. If you’re going by what she calls herself, then what would you say if it was ten weeks after her birthday, and she was already calling herself “ten and a quarter” in anticipation?

    Milhouse (d7842d)

  66. Not a lawyer, by the way. But I am a computer programmer, so I know that 10.02 > 10

    Milhouse (d7842d)

  67. So now anyone between the age of 17 years 1 day and 17 years 364 days should be allowed to see an R-rated movie unaccompanied by an adult; right?

    Um, yes, of course. That is exactly how it works, isn’t it?

    Milhouse (d7842d)

  68. Milhouse, how old are you?

    Just answer to yourself. I suspect you said twenty-six or thirty-nine or fifty-two, even though you are some days, weeks, perhaps even months older.

    We’re speaking English, not Assembly.

    In English, if you are a day younger than eleven, you are ten years old.

    Sure, technically, every one saying they are ‘ten’ is actually ten plus something. But I expect judges to work that out, and I just disagree with the way this one got worked out.

    Dustin (cb3719)

  69. It is common parlance to speak of “my 40th year”, for example.

    Yes. And this girl was in her eleventh year.

    Milhouse (d7842d)

  70. Question for FuzzyFace: Picking up on the point by Nels, what happens if a girl that had been born at 6:00PM is sodomized at 6:01PM on her 10th birthday? Is it then no longer a felony? Who makes the determination that the entire day counts as “10 years of age”? The court? Why? Is the word “birthday” buried somewhere in the language of the law?

    She turns 10 at midnight on her birthday. As soon as midnight has passed, she is older than 10.

    Milhouse (d7842d)

  71. Yes. And this girl was in her eleventh year.

    Comment by Milhouse

    But that means she hadn’t completed her eleventh year yet. She was not yet eleven.

    She was ten. It’s just what it means to say ‘I’m ten’. That means you are in your eleventh year. It’s not rounding to the nearest year, and it’s not “I’m older than ten” when you are in your eleventh year even though that is literally the case.

    Dustin (cb3719)

  72. I think that child molesters should be turned over to Apaches who still remember the old ways. Blinding, removal of the tongue and ears, castration, hamstringing, cutting the elbow tendons and then left out in the Mojave to await the Grace of the Great Spirit.

    What makes you think those Apaches would disapprove of such a person and be inclined to punish him?

    Milhouse (d7842d)

  73. I also the blame the voters who did not vote a lawyer into the legislature who knows how to write “a child who has not yet attained the age of eleven years”. Vote for nogood legislators, get nogood laws.

    Um, why are you assuming they didn’t mean exactly what they wrote? How do you know they meant “under 11″ rather than “right up to the 10th birthday”?

    Milhouse (d7842d)

  74. If the statute says that a crime shall carry a penalty of “no more than 10 years”, and a judge sentences someone to 10 years and a day, will anyone deny that he was ultra vires?

    Milhouse (d7842d)

  75. This is what we pay judges to handle properly. The law meant under eleven when they said ten years old.

    Maybe. Or maybe it didn’t. How do you know?

    Milhouse (d7842d)

  76. “salk” was imdw. Many of you probably guessed already. Did I say “was”? Yes… yes I did. 😉

    Stashiu3 (601b7d)

  77. Milhouse, how old are you?

    Just answer to yourself. I suspect you said twenty-six or thirty-nine or fifty-two, even though you are some days, weeks, perhaps even months older.

    Indeed. But that’s because I know you don’t expect a precise answer, and nothing hinges on the accuracy. If I were vain I might even lie and tell you an age that is more than a year less than the truth, and not think it very wrong because after all it’s close enough for any purpose you had in mind. But legislation has to be precise. If a law hinges on whether someone is or is not older than some number of years then even a day older is older.

    Milhouse (d7842d)

  78. Maybe. Or maybe it didn’t. How do you know?

    Comment by Milhouse — 12/12/2011 @ 3:24 pm

    It’s simply how the language works. You know what someone means when they say a stop sign is red, right? Yet how do you really know what that means? And you know what a ten year old child is. It’s someone older than ten and younger than eleven.

    Those who wish to specify something more precise or different should go out of their way.

    Sometimes, judges have their work cut out figuring out what sections of law mean, and we should expect them to do a very good job. But if they can’t even get this one right, that shows we’ve got a serious problem.

    Dustin (cb3719)

  79. Lawyers………………….meh they are like anal ulcers.

    Dohbiden (ef98f0)

  80. And yes I should know since I have one.

    Dohbiden (ef98f0)

  81. But that’s because I know you don’t expect a precise answer, and nothing hinges on the accuracy

    OK, that’s fair. A penal code is a very serious thing, so perhaps my colloquial interpretation is too familiar. I fall back to thinking if it’s the case the penal code was not written precisely, it’s clear what they meant by ‘ten year old’.

    Dustin (cb3719)

  82. Thank you, Stashiu3.

    DRJ (a83b8b)

  83. Thank you narciso; if this is the law in question then it seems pretty clear that the intent was “under 10″, not “under 11″, so the court got it exactly right.

    Milhouse (d7842d)

  84. Milhouse,

    Going back to Patterico’s point, is it better for judges to interpret and for people to understand laws according to the words as they were written? Or is it better to track down legislative intent — even if wasn’t expressly addressed or agreed to by the legislators voting on the bill?

    DRJ (a83b8b)

  85. Stash – hence the “Salk” above

    JD (554e77)

  86. to roy and aphrael, thank you for your comments.

    Yes, I have heard (and even repeated) the difference between a justice system and a legal system. I don’t know how it would be done, but I would like to see a system where both sides were trying to discover “the truth” of a matter from different starting places. The idea of an adversarial system with the expectation that “everything balances out in the end” ignores many important issues, for example the bias that often exists when one person can pay a higher price for a more skilled attorney than someone else.

    And yes, I understand that under the adversarial system each side is “supposed to do all that it can to win” (without cheating) or potentially be charged with failure to fulfill their responsibility.

    All of that aside, you are the criminal defense attorney, another child was molested, maybe murdered, while the defendant was out on bail because you successfully “tweaked a technicality”. Do you think upholding the principle of “best defense possible” was justified and go on to your next case? Do you decide, “Hell, I’m not going to get caught up in that again” and quit? Do you decide, “The ultimate purpose of the law is to bring order, stability, and safety to the public as possible. I’m going to keep that in mind before I do something like that again, and if someone wants to disbar me, let them try, but I’m not going look another grieving parent in the eye because I outfoxed someone on a given day.”?

    yes, it is always dangerous for an individual to take responsibility to go outside of the norm, but it is also dangerous for a person to decide never to.

    MD in Philly (3d3f72)

  87. Under the law, you are exactly the age of your last birthday until you celebrate your next birthday. Don’t believe me? Try getting a Drivers License at 15 years 11 months and 10 days in any state that the law states that you have to have attained the age of 16.

    Federal law states you must be 18 yoa to purchase a long gun. Try buying one at 17 years 11 months 29 days. Or, a handgun at 20 years 11 months 28 days.

    And since the legal age to drink is 21, try to purchase some booze at 20 years 11 months 18 days.

    Or how about the age that is listed by the coroner on a death certificate, it is always listed as your age at your last birthday.

    Really folks, this is a no brainer.

    peedoffamerican (ee1de0)

  88. So until the little girl has her 11th birthday, she is legally considered to be 10 years of age.

    peedoffamerican (ee1de0)

  89. Under the law, you are exactly the age of your last birthday until you celebrate your next birthday. Don’t believe me? Try getting a Drivers License at 15 years 11 months and 10 days in any state that the law states that you have to have attained the age of 16.

    Duh. 15.9 < 16. Can this be any more obvious?

    Federal law states you must be 18 yoa to purchase a long gun. Try buying one at 17 years 11 months 29 days. Or, a handgun at 20 years 11 months 28 days.

    And since the legal age to drink is 21, try to purchase some booze at 20 years 11 months 18 days.

    Again, duh. 17.999 < 18, and 20.999 < 21. What exactly is your point, if you have one?

    Milhouse (d7842d)

  90. So until the little girl has her 11th birthday, she is legally considered to be 10 years of age.

    No, she is more than 10 but less than 11.

    Milhouse (d7842d)

  91. Going back to Patterico’s point, is it better for judges to interpret and for people to understand laws according to the words as they were written? Or is it better to track down legislative intent — even if wasn’t expressly addressed or agreed to by the legislators voting on the bill?

    Legislative intent as shown by their words, since that’s all the public who are expected to obey the law have to go on. Which is exactly what the judges did in this case. And the document narciso cited shows that they got it right.

    Milhouse (d7842d)

  92. Do the words “10 years of age or younger” typically mean “exactly 10 years old, not one day more”?

    DRJ (a83b8b)

  93. No Milhouse only you can miss the obvious point. They are 20 yoa until their birthday which then would make them 21 yoa. They are only 18 yoa until their 18th birthday. Therefore they are legally only 10 yoa until their 11th birthday.

    peedoffamerican (ee1de0)

  94. Oops should read; They are only 17 yoa until their 18th birthday.

    peedoffamerican (ee1de0)

  95. Under the law, you are only considered to be the age that you attained on your last birthday.

    peedoffamerican (ee1de0)

  96. How old are you for retirement on SS are you considered to be at 64 years, 6 mos., 13 days? Think you will get that SS check before you legally turn 65? That is unless you retire early at 62 with a penalty or become disabled.

    peedoffamerican (ee1de0)

  97. Do the words “10 years of age or younger” typically mean “exactly 10 years old, not one day more”?

    When they’re in a statute that people have to obey at their peril, it had damn well better mean that.

    Milhouse (d7842d)

  98. No Milhouse only you can miss the obvious point. They are 20 yoa until their birthday which then would make them 21 yoa.

    So you say. But none of the examples you cited do anything at all to support this position. So why did you cite them? Do you have any actual argument for your claim?

    Milhouse (d7842d)

  99. How old are you for retirement on SS are you considered to be at 64 years, 6 mos., 13 days? Think you will get that SS check before you legally turn 65?

    Look, are you dumb or what? Your “argument” makes no sense at all, and anyone with any reasoning ability can immediately see that. Why on earth would someone who is 64.9 years old get something that he’s only eligible for at 65? And how does his non-eligibility demonstrate that he is only 64?

    Milhouse (d7842d)

  100. No but it really appears that you are dumb.

    It makes perfect sense to someone who is not denser than stone.

    peedoffamerican (ee1de0)

  101. Texas Penal Code – Section 1.06. Computation Of Age
    § 1.06. COMPUTATION OF AGE. A person attains a specified
    age on the day of the anniversary of his birthdate.

    Just one example.

    peedoffamerican (ee1de0)

  102. Thank you, Stashiu, for ridding us of imdw (however temporary that might be).

    I had a weird suspicion this morning that might be imdw. Something about the writing style and utter dishonesty.

    Patterico (f724ca)

  103. § 1.06. COMPUTATION OF AGE. A person attains a specified
    age on the day of the anniversary of his birthdate.

    Yes, of course he does; when else could he possibly do so? What has it got to do with the subject?

    Milhouse (d7842d)

  104. Ain’t it interesting that Patterico presents a case that is thought to be a clear example of something, but people still find reason to quible about it. I guess some people ain’t happy unless they’re fussin’ and arguin’.

    (As I am writing this, for some reason this comes to mind:
    http://www.youtube.com/watch?v=f72Svxhqy-k&feature=related )

    MD in Philly (3d3f72)

  105. It seems to me that “salk’s” line of thinking has been well represented in his absence.

    MD in Philly (3d3f72)

  106. Painted Jaguar: It appears to me that Mr. Beldar posted at #39 and #40 that even a majority of lawyers concluded that it meant what everybody thought it meant. Not nearly as complicated as porcupines, turtles, and armadillos.

    Too much commotion. Some spend some time with us by the deep, turbid waters of the Amazon, where your mind can rest on the simple things in life… like eat or be eaten.

    MD in Philly (3d3f72)

  107. Yes, of course he does; when else could he possibly do so? What has it got to do with the subject?

    Comment by Milhouse — 12/12/2011 @ 6:21 pm

    OMG, he is dumber than I thought possible! If a person attains a specified
    age on the day of the anniversary of his birthdate, ie., 18, then he is considered to be legally 18 yoa for the entire year until his next birthdate at which time he will then considered to be 19 yoa. No older, no younger than that, period.

    This is EPWJ, Kman, and IMDW level of stupidity. You do note that they specified years of age, not years, months, days, hours, minutes, seconds, and nanoseconds?

    Sheesh, dumberer than a sack of Andrews!

    peedoffamerican (ee1de0)

  108. Really folks, this is a no brainer.
    Comment by peedoffamerican — 12/12/2011 @ 5:00 pm

    That’s why Milhouse can’t get it?

    AD-RtR/OS! (5bf382)

  109. California Penal Code section 288.7(a) reads as follows:

    Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life.

    That simple language in bold is apparently too difficult for some judges to understand.

    Our hypothetical defendant is 19 years old. The evidence shows that he met the victim at her 10th birthday party. One week later, he had sex with her. Is he subject to the penalties provided by this law?

    As a common sense person, dear reader, you are saying: of course he is!

    No, I’m thinking the answer is no. She is only 9 of age years younger than him, and she has to be 10 years of age or younger than he is, and even if he had his 20th birthday three days after he met her, she’d still be only 9 years, 11 months and 27 days younger.

    If he was 20 when he met her, or she was 9 and fewer days than he was days past 19 years old,
    he would be guilty.

    Nobody thought of it that way?

    Sammy Finkelman (b17872)

  110. MD – there exists a potential world in which I become a defense attorney, so I’ve had to think about this a lot. The best I can come up with is this: part of the job of the defense attorney in this system is to ensure that the *state* has done its job, that it has properly mustered the evidence needed to justify denying a man his freedom, and that it has convinced a jury of his peers that he should have his freedom denied. On some level, defense attorneys are to prosecutors as QA is to developers: they exist to test the case, in the interest not just of the individual client being defended, but in vindication of the common interest in the principle that no man should be denied his freedom without both due cause and due process.

    yes, it is always dangerous for an individual to take responsibility to go outside of the norm, but it is also dangerous for a person to decide never to.

    I would certainly agree with that. But at the same time, that should be preserved for truly critical situations.

    aphrael (1fc48e)

  111. All of that aside, you are the criminal defense attorney, another child was molested, maybe murdered, while the defendant was out on bail because you successfully “tweaked a technicality”.

    Many defense attorneys would take the position: “It isn’t my fault that the legislature screwed up,” or “If the prosecutors had done their job properly, this wouldn’t have happened.”

    Since I would never have been a defense attorney, I can’t specifically answer. Any defense attorney who only represents truly innocent people is known as “broke.” While I agree that even guilty people deserve a fair trial, it appears to me that too many defense attorneys view it more as a game for them to win or lose. Of course, I may be a bit cynical about attorneys.

    roy in nipomo (d31d1e)

  112. Sammy – your line of reasoning doesn’t work, because “ten years of age or younger” is a full predicate. It does not mean “ten years of age or younger compared with the perpetrator”; there’s no reasonable grammatical construction which can yield that.

    aphrael (1fc48e)

  113. Really Gorebull warming is destryoing the pandas habitat?

    Really leftys Gorebull warming doesn’t exist.

    Dohbiden (ef98f0)

  114. Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life.

    Let me put it another way. If the scumbag did it with a daughter of mine that was only 10, 11, 12 etc years of age, the stupid ass judge wouldn’t have to worry about what that law said. I would take care of the situation myself.

    peedoffamerican (ee1de0)

  115. A rusty and jagged knife, a floor mounted vice with handle removed and gripping the offending member, and a burning building with him having one of two choices. Has happened before and the father only got 10 years unsupervised probation.

    peedoffamerican (ee1de0)

  116. Thanks again for your responses, roy and aphrael. I agree with what you say as a basic framework, aphrael, but somewhere I still have a notion that “the main thing should be the main thing”, and that being technical and precise is good in principle to clarify and bring order, but if focusing on a small technical matter circumvents the overriding purpose it seems contrary.

    All of the time in life we get handed stuff that is messed up and not of our own making. Typically, if we have any responsibility or opportunity to “fix it” that is what we do, unless you are a defense attorney, and then you are to exploit it.

    MD in Philly (3d3f72)

  117. Doc, the legal system, which writes the laws, gets so hung up on the “letter of the law”, that it completely loses sight of the “spirit of the law”.
    And they wonder why the “common man” hates lawyers.

    AD-RtR/OS! (5bf382)

  118. edited correction…
    Doc, the legal system, which writes the laws, gets so hung up on the “letter of the law”, that it completely loses sight of the “spirit of the law”, when interpreting what they have wrought.
    And they wonder why the “common man” hates lawyers.

    AD-RtR/OS! (5bf382)

  119. MD,

    I guess those ‘dumb’ legislators just wanted to protect children for ONE more day by stating 10 years or younger. After all, the way the judge reasons? it, they actually meant younger than ten years of age. That ONE day is just so much more meaningful in the life of an innocent child.

    Isn’t that what some of the comments allude to?

    Or is this a case of bigotry that is targeting a peaceful religion whose prophet consummated a marriage with a 9 year old?

    peedoffamerican (ee1de0)

  120. That’s the way one judge ruled it. Beldar gave us info of another situation. I think what Patterico intended, which most of us understand, is while there may be some ambiguity when you stand the thing on its head and the law could have been written to avoid any ambiguity, that the typical person’s use of American English would allow the law to be clear.

    I think arguing about the ideal wording isn’t even thinking of protecting children.

    MD in Philly (3d3f72)

  121. Well, in a bank robbers mind, he is not really stealing, he is just ‘borrowing’ the money. After all he always intended pay the money back.

    peedoffamerican (ee1de0)

  122. Comment by aphrael — 12/12/2011 @ 6:45 pm

    Sammy – your line of reasoning doesn’t work, because “ten years of age or younger” is a full predicate. It does not mean “ten years of age or younger compared with the perpetrator”; there’s no reasonable grammatical construction which can yield that.

    Suppose it read:

    Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years younger

    what would it mean then?

    Does interpolating “of age or “limit the possible meaning of the sentence? Because you can’t say “of age” without it referring to the words before it, rather than later? That is “of age” never can precede younger or older?

    Sammy Finkelman (b17872)

  123. Suppose it read, “I love Oreo cookies” too. But it damn well doesn’t say either of the two.

    peedoffamerican (ee1de0)

  124. Milhouse is struggling with the new math

    Icy (8e81e4)

  125. Definitely. There is a difference between common cents and common sense.

    peedoffamerican (ee1de0)

  126. POA is either uneducably dumb, or faking it because he’s a dishonest POS. There is no logical way to jump from point A: “a person turns 18 on his 18th birthday” to point B: “a person is exactly 17 years old until his 18th birthday”. If you want to claim B you have to prove it; you cannot derive it from A, because it simply does not follow.

    Given the long list of tendentious Bible quotes that he posted, purporting to show that the sin of Sodom was homosexuality (yes, I know I haven’t yet got around to a detailed fisking, but I looked up every one of them and they were all irrelevant), well, I still don’t know whether to go with dumb or dishonest.

    Milhouse (ea66e3)


  127. The idea of an adversarial system with the expectation that “everything balances out in the end” ignores many important issues, for example the bias that often exists when one person can pay a higher price for a more skilled attorney than someone else.

    facepalm.

    The idea of an adversarial system is that not every prosecutor is like Patterico… not every DA will act in good faith to “find the truth.” Q.v. Mike Nifong.

    Yes, I’m sure that he was searching for the truth when he committed those many, many ethical lapses/illegal acts.

    Imagine, if you will, an anti-Patterico – a prosecutor in a large jurisdiction, who can call on the vast resources of the state – police, lawyers, forensic personnel – and imagine he’s a bad man, with no compunction about using these resources for his own ends.

    Now imagine that the bad man wants you convicted of something you didn’t do. (Or, hell, did do.)

    Now imagine walking into a courtroom where the public defender is about to engage in a “mutual search for the truth” () or whatever with the guy sharpening the carving knives.

    What, exactly, do you think your chances are?

    Not much, Sonny Jim. I suspect Patt will tell you the same (though I’m loathe to put words in his mouth.)

    jdub (bda85a)

  128. There’s nothing “new math” about the fact that 10.1 > 10 > 9.9.

    Milhouse (ea66e3)

  129. Did you know that you are not really 11 years old until the day after your 11th birthday?

    AZ Bob (7dbcdc)

  130. Did you know that you are not really 11 years old until the day after your 11th birthday?

    No, I didn’t know that, because it isn’t true. You turn 11 at midnight on your 11th birthday.

    Milhouse (ea66e3)

  131. The question is how old you are a minute before that, and the plainest answer is that you are just a tad under 11. 10.9999, let’s say.

    Milhouse (ea66e3)

  132. I still don’t know whether to go with dumb or dishonest.

    Comment by Milhouse — 12/12/2011 @ 8:38 pm

    I will go with both in application to you.

    peedoffamerican (ee1de0)

  133. or 10.9999999

    SteveG (e27d71)

  134. Can somebody repost the link to block seeing posters, I tire of seeing this dweebs boorish and unintelligent dribbles.

    peedoffamerican (ee1de0)

  135. Ironic, that. Will you at least have the decency to thank me?

    Milhouse (ea66e3)

  136. Ironic, that. Will you at least have the decency to thank me?
    Comment by Milhouse — 12/12/2011 @ 9:55 pm

    Okay, now that’s funny no matter who you are.

    peedoffamerican… Milhouse is the one who first brought the script here.

    Stashiu3 (601b7d)

  137. Though I didn’t come up with it from scratch; my greasemonkey skilz aren’t up to that. I adapted it from one that someone else made for Volokh.

    Milhouse (ea66e3)

  138. It’s hilarious that all these lawyers and wannabes are patting themselves on the back for being so clever as to have understood the distinction between “<" and "<=", and the importance of how many decimal places (or in this case, years/days/minutes) of precision are used in this assessment. Any scientist or mathematician or engineer, etc, would have been all over this way before it got to the court of appeals!

    CB3 (f303ee)

  139. And for what it’s worth, if the code has clearly defined how age is calculated and considered, as the aforementioned Texas law, then I can’t see why the benefit of the doubt shouldn’t go to the defendant (whose liberty is at stake), not the state. I’m assuming the defendant is still guilty of some serious crime and will get plenty of jail time.
    Get over it people, it’s an arbitrary number however you define it. I mean is a victim that is 11 years and 1 day old really that much less sympathetic than a 9 year and 364-day-old?

    CB3 (f303ee)

  140. Yes, CB3, mot only is it an arbitrarily defined number, to some degree the issue is the “arbitrary” definition of the phrase “10 and under”.

    Milhouse, the computer programer, wants to assign the English phrase in commom usage “10 and under” to be identical to the mathematical sentence <=10.

    The question is whether the phrase in the English language, referring to age, is identical in meaning=usage to the mathematical sentence. Patterico and a great many of us think these two are not identical, and to say someone is "10 years old" does not mean they are exactly 10 years=3650 days old, and hence the phrase "10 and younger" does not mean 10 years=3650 days and younger.

    Some persist in disagreement. One of them was removed due to prior banning. The other often has intelligent things to say, but for some reason appears to enjoy annoying people.

    jdub-
    I will take a plea bargain and admit to a 1/2 face palm! You are correct. Theoretically, our society could make some standard by which all DA's are appointed (yes, I know they are not usually appointed, but that's aside my point) and minimize that likelihood. There still remains the inequity of defense.

    Unfortunate that instead of an increasingly color-blind society as Dr. King wished, it seems increasingly color-observant, it's just that there is an increase in opportuntiy of who gets singled out for abuse.

    MD in Philly (3d3f72)

  141. I hate Joe Kennedy and his useful idiocy for the Chavez crime familyin Venezuela.

    Dohbiden (ef98f0)

  142. MD in Philly – It has been my experience that it not at all uncommon to find computer programmers have very poor interpersonal skills for obvious reasons. Same with actuaries.

    daleyrocks (bf33e9)

  143. For more than the last century, a period of ten years has been nominally 3652 days (and some additional fraction, and not considering that the first day might have only been a fraction of a second, born at 23:59:59).

    Accurate mathematical definitions are going to require the proper use of floor and ceiling functions to do the fractional time to integer year conversions.

    The offender is going away for a very long time. Someone should ask the judge if he was hoping the legislature would fix the language.

    htom (412a17)

  144. Acid Rain is a liberal myth.

    Dohbiden (ef98f0)

  145. the English phrase in commom usage

    But this is law, not ocmmon usage. Statutes have to be precise; when someone’s freedom is at stake we can’t afford loose language. If serious money were at stake you’d want to have the terms pinned down; how much more so here. A person is entitled to be on notice as to exactly what the law expects of him, and by what standard he is to be judged; and any ambiguity must be resolved in his favor.

    Milhouse (ea66e3)

  146. For precision, it should have been written as “not having attained their Eleventh Birthday“.
    That would seem to be quite definitive.
    But, of course, we’re talking about legislators here, who are overwhelmingly lawyers.
    Definitive clauses don’t leave any wiggle-room for Barristers, and their brethern.

    AD-RtR/OS! (21429a)

  147. For precision, it should have been written as “not having attained their Eleventh Birthday“.

    Or rather, “their Tenth Birthday”, since the document cited by narciso demonstrates that this was their intention. But there’s already a law stating that one attains an age at ones birthday, so “the age of ten years” is the same as “ones tenth birthday”.

    Milhouse (ea66e3)

  148. Well, I read the statute as that it wishes to define the age group that subjects the defendant to a more severe penalty as “10 and under” or “less than eleven”.
    If the legislator had wished to say “under-10″, he/she would have.
    So, “not having attained their Eleventh Birthday” would be the most definitive wording of that intent.

    Please let me know when it is accepted practice to sell tobacco producst to someone less than eighteen years of age, alcohol to someone less than twenty-one years of age, and firearms to someone less than eighteen (long arms) or twenty-one (handguns) years of age.

    At that point, I might consider your obfuscation of language as commonly understood.

    AD-RtR/OS! (21429a)

  149. The problem with ‘fixing’ the statute is that it just eliminates one single pedantic interpretation that seems quite wrong.

    There are infinite further wrong interpretations. We should only trust the court to people who can handle the task reliably.

    What happens when someone comes back from mars, and is 21 earth years old, but has only actually been around the sun nine times. Or when a child is frozen cryogenically for a decade?

    For a reliable judge, such curveballs are no problem at all.

    Dustin (cb3719)

  150. btw, though I differ with Milhouse, I personally enjoy the arguing about this topic. It goes without saying that the person who argues the opposing view is going to be pedantic. I don’t think that needs to be a source of frustration.

    Dustin (cb3719)

  151. Well, once we start to send people into InterStellar Space, and beyond, we’ll just have to adopt the the Federation Code.

    AD-RtR/OS! (21429a)

  152. Well, I read the statute as that it wishes to define the age group that subjects the defendant to a more severe penalty as “10 and under” or “less than eleven”.

    We know that that was not the legislators’ intention. The document narciso cites proves that. The question is merely what do the words they used actually mean.

    Please let me know when it is accepted practice to sell tobacco producst to someone less than eighteen years of age, alcohol to someone less than twenty-one years of age, and firearms to someone less than eighteen (long arms) or twenty-one (handguns) years of age.

    Huh?! Now you’re making no sense. Why would you think that a 17.9-year-old could buy tobacco, or a 20.9-year-old alcohol, when the law says 18 and 21? Why would that even occur to you, and how could you possibly derive such an idea from my position? 18 is 18. Not 17.9, and not 18.1. 17.9 is under 18, and 18.1 is over 18. At midnight on a person’s 18th birthday they can buy cigarettes; not at 11:59pm on the previous day. But nor do they have to wait until a minute before their 22nd birthday!

    Milhouse (ea66e3)

  153. Milhouse:
    The narcisco cite is for an article that is written for an LE audience (as it states),
    but would not be legally binding (unless you can find something within the CA code that states otherwise), and says the law applies to victims “under 10″;
    BUT (and this would make one conclude that the author is guilty of sloppy writing),
    it says for the legislative language found in PC288.7 to go elsewhere.

    Well, I did go elsewhere, to the CA Penal Code
    http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=281-289.6,
    which says:

    288.7. (a) Any person 18 years of age or older who engages in
    sexual intercourse or sodomy with a child who is 10 years of age or
    younger
    is guilty of a felony and shall be punished by imprisonment
    in the state prison for a term of 25 years to life.
    (b) Any person 18 years of age or older who engages in oral
    copulation or sexual penetration, as defined in Section 289, with a
    child who is 10 years of age or younger is guilty of a felony and
    shall be punished by imprisonment in the state prison for a term of
    15 years to life.”

    (emphasis added)

    Now, as you can see, the letter of the law is “10-years of age or younger”.
    It does not say “under 10″, or “less than ten”, it says “10-years of age or younger“.
    A child is 10-years of age until they reach their eleventh birthday.

    An apple is not an orange.

    ..if any of our legal-eagles can point out what errors I have made in the analysis of this statute, I welcome their attempt to bring some enlightment to my drab, dreary existence.

    AD-RtR/OS! (21429a)

  154. We know that that was not the legislators’ intention. The document narciso cites proves that. The question is merely what do the words they used actually mean.
    – Milhouse

    Painted Jaguar (indignantly flicking tail and with a particularly hostile gaze, even for a hungry jaguar):

    Mr. Milhouse, do you have any information in addition to the link from narciso? If so, please state it.
    If not, I shall make several points (opening claws of R forepaw)-
    First, as “AD” has pointed out, the reference is to a publication which is intended to give an overview for voters. Nowhere is it said to be an official endorsed explanation of the law.
    Second, there is nothing to indicate that the writer of such publication had anything to do with the writing of the law, hence a definitive understanding of the law’s intent.
    Third, the language in the referenced publication uses the phrase “under 10″.

    Unless you have further information which you have withheld, it appears that you have merely speculated that “under 10″ in a description of the bill means the same as “10 and under” which is in the actual bill. One can also speculate that the person who wrote a summary description made an error.

    As you would put it, “<10" and "<=10" do not mean the same thing. You are asking us to believe that they are, or to treat them as they are.

    Mr. Beldar referenced actual legal opinion related to the matter (though from Texas) showing a judicial interpretation consistent with that argued by Mr. Patterico and others.

    For one so insistent on being precise, to say a summary publication using different and non-equivalent terminology is "proof" is a bit much.

    Mr. Dustin must have the patience of my ever so kind and loving mummy. I don't.

    MD in Philly (3d3f72)

  155. MD,

    He just can’t wrap his pointy little head around the fact that biological age and legal age are two different things. Biologically, you might be 10 years, 6 months, and 13 days old which makes it about 10.55 or so, in legal parlance you are 10 years old.

    I have been in law enforcement in three different states, and I have never seen or heard of any form that asked for subjects age that included months, days, hours, minutes, seconds, nanoseconds ad-infinitum. It only asks for the subjects age in YEARS, period.

    Also, the legal definition of determining a person’s age in those states was their age on their last birthdate.

    The only time months is used in age is when a baby is less than one year old, after the child reaches 1 year of age, the age is only given in years.

    Once again he spouts off about something that he has no knowledge of.

    peedoffamerican (ee1de0)

  156. First, as “AD” has pointed out, the reference is to a publication which is intended to give an overview for voters. Nowhere is it said to be an official endorsed explanation of the law.

    Actually for policemen. And it’s by an experienced prosecutor who was a candidate for judge. And it was written close to the time when the law was passed, by someone involved in pushing a similar law. So the author probably had a better idea of the legislators’ intent than does Patterico or anyone else commenting now that it’s an issue.

    Second, there is nothing to indicate that the writer of such publication had anything to do with the writing of the law, hence a definitive understanding of the law’s intent.

    The intent of the drafter is irrelevant. What matters is the intent of the legislators who voted on it, and the public who are bound by it. But the writer of this document knew everything that you and I and Patterico know, and more. She had a better idea of what the legislators intended to accomplish than we do.

    Third, the language in the referenced publication uses the phrase “under 10″.

    Exactly. Her inaccurate summary is “under 10″, not “under 11″. Which indicates that that’s what the actual language, “10 or under” meant to her, and probably what it meant to the legislators.

    Note another thing about that document, though, something that puts this whole question in crucial context. What was going on around the time that this law was passed? What was the document written to explain? There was a proposition on the ballot, which would achieve most of the same objectives. Presumably both this law and the proposition were motivated by similar things. Now ask yourself why the legislature picked the age of 10 as the cutoff, rather than some other age. Why not 11 or 12? You will find the answer in the second paragraph of this document: “Jessica was a nine year old girl who was kidnapped, sexually assaulted and murdered by a previously convicted sex offender.” Now do you understand?

    Now, as you can see, the letter of the law is “10-years of age or younger”.
    It does not say “under 10″, or “less than ten”, it says “10-years of age or younger“.

    Yes, of course it does. Did you think I didn’t know that? But what doest hat mean? You assert, without any proof or reason whatsoever, that

    A child is 10-years of age until they reach their eleventh birthday.

    No evidence, just assertion. And you know it isn’t true. Saying it repeatedly doesn’t make it so. You haven’t cited a law, a source, or anything else. Just “I say so, and you must accept it or suffer abuse”. Well I will not be bullied, do you hear? You can take your abuse and shove it where the sun don’t shine. You know very well that a day after someone’s 10th birthday they are a little bit more than 10 years old, and you can pretend all you like but it won’t change reality. You can pretend to read the legislators’ minds about what they meant to write, but I’ve got evidence, however inconclusive, and you’ve got nothing but a wild guess.

    Milhouse (ea66e3)

  157. Mr. Dustin must have the patience of my ever so kind and loving mummy. I don’t.

    Comment by MD in Philly — 12/13/2011 @ 8:38 pm

    I definitely see where you’re coming from in being annoyed with Milhouse. Some of the ways he explains himself, with ‘duh’ and such, when he’s gotta realize he’s arguing the minority view, rub everyone the wrong way.

    I just accept that this is the price paid for having someone earnestly explore the opposing viewpoint. At least Milhouse is just arguing his points.

    And no, I’m not really a saint as far as patience goes lately. I wish that were true.

    Dustin (cb3719)

  158. POA, you’re the one who cited a whole list of Bible verses about “Sodomites” as proof that Sodom has something to do with homosexual behaviour, when the actual text of those verses does not include any reference to Sodom at all. The word “Sodomite” which you use as your proof is the translator’s word for “male prostitute”. It does not appear in the original text. All it shows is that the translator associated the two in his mind. And thus your thesis collapses. But you couldn’t know this because you don’t know nearly as much as you think you do. You rely on translations, since you can’t read the original, but you presume to argue with someone who’s familiar with the original. That’s the definition of a “pointy little head”.

    Milhouse (ea66e3)

  159. Dustin, “duh” is the only possible response when someone repeats, over and over, the obvious point that someone who is under 18 is in fact under 18, as if that somehow constituted an argument against my position on the meaning of “18 and under”. It takes a special kind of stupidity to think that is a useful argument to make.

    Milhouse (ea66e3)

  160. Oops, didn’t close my italics earlier. And I’ve still been too busy/lazy to go back and do the detailed, verse-by-verse fisking of POA’s list of cites, but most of them fell into the category I just mentioned, where the translator he’s using chose to render k’deishim (male prostitutes) as “sodomites”.

    Milhouse (ea66e3)

  161. See, Milhouse, this is not helping me make my case here.

    Just about everyone in this thread is smart and earnest, the banned troll not withstanding.

    You bring some great POVs, and then you sometimes present them in ways that suggest you don’t think much of those who disagree.

    And by all means, express that you think people are especially stupid if you feel like it. But they aren’t stupid and they won’t respond favorably.

    I guess I just have a new perspective on discourse online. I think this thread is really good, apart from people lamenting that it isn’t.

    Dustin (cb3719)

  162. Texas Penal Code – Section 1.06. Computation Of Age
    § 1.06. COMPUTATION OF AGE. A person attains a specified
    age on the day of the anniversary of his birthdate.

    Basically worded the same in all 50 states. That means that legally that person is 10, 25, or 50 years old for the entire year until their next anniversary of their birth. It is you that has shown no proof, or your assertions that have no basis in legal fact.

    peedoffamerican (c963cd)

  163. only your assertions”

    peedoffamerican (c963cd)

  164. § 1.06. COMPUTATION OF AGE. A person attains a specified
    age on the day of the anniversary of his birthdate.

    Yes, of course he does. When else would he do so, if not then?

    That means that legally that person is 10, 25, or 50 years old for the entire year until their next anniversary of their birth.

    Since when? How do you get from A to B? Once again you show yourself incapable of elementary logic.

    Milhouse (ea66e3)

  165. Because moron, he or she doesn’t attain another year of age until their next anniversary of birth. Are you really this obtuse or is this just an act to keep from admitting that you don’t know Jack Schitt?

    peedoffamerican (c963cd)

  166. If you cannot grasp such a plain and simple fact as this, then you are incapable of even elementary logic and are not worth the effort of further discourse.

    Cya, Mr Knowitall but actually should be Mr Knownothingatall.

    peedoffamerican (c963cd)

  167. Milhouse,

    You are merely claiming your conjecture about one link from narcisco is the definitive “proof”, in spite of the draw backs.

    Looking at what first appeared in a search on the law it seems the biggest changes had to do with considerations of where a sex offender could live within proximity to a school and the use of GPS tracking. Are we to believe that if in the following year a case with an 8 year old, or a 10 year old were in the news the law would be changed again?

    No, again, you are merely insisting on your interpretation being the definitive one in light of a lack of evidence.

    I would suggest the most definitive information, by your own standards, is the fact that “<10" is NOT the same as "<=10", and the document referenced by narciso merely shows confusion, which has already been noted.

    Painted Jaguar left a note that reads:
    I leave with you a corollary to “Jessica’s Law” called “The Milhouse Rule”. Hunting armadillos, which I do not do ever since my dear, patient, loving mummy told me to stay away from them, is to be preferred over having a discussion with Milhouse, which I plan to do again right after I hunt an armadillo, which I never do.

    There are times I think my fierce, powerful, and not at all patient poppa made a good example too.

    MD in Philly (3d3f72)

  168. Painted Jaguar: As Mr. Kipling used to say (or so I understand), “Good day!”

    MD in Philly (3d3f72)

  169. Because moron, he or she doesn’t attain another year of age until their next anniversary of birth.

    Well of course not. How could someone attain the age of 11 when she’s only 10.5 or 10.75 or 10.99? Who’s disputing that? But how do you leap from there to the nonsensical claim that until she turns 11 she’s no older than 10? That is what you haven’t demonstrated any evidence for, and it’s quite plainly wrong.

    Milhouse (d7842d)

  170. Who called you a moron?

    Dohbiden (ef98f0)

  171. Um, who the #$%^ is “painted jaguar”?

    Milhouse (d7842d)

  172. Who called you a moron?

    The same guy who imagines himself a Bible expert.

    Milhouse (d7842d)

  173. peedoffamerican claimed to be a Bible expert? I must have missed that post.

    Icy (38a225)

  174. I am 42.24784685335677331

    JD (8edcef)

  175. I have no trouble with Milhouse claiming to be an expert on sodomy. To each his own.

    daleyrocks (bf33e9)

  176. And no, I’m not really a saint as far as patience goes lately. I wish that were true.
    Comment by Dustin — 12/13/2011 @ 10:07 pm

    — You don’t need to be a saint. But perhaps we could all glean some wisdom from examining a basic truism of human interaction: The person that complains “you’re not debating the right way” usually comes out of the exchange looking weak, petty, defensive, unfocused, unnerved, spiteful . . .
    Examples: Ross Perot (“Larry, can I finish? can I finish, Larry?”) Mitt Romney (Bret Baier’s questions were “uncalled for”)

    Icy (38a225)

  177. I am 46.150684931506849

    And yes, this means I am now officially a dirty old decimal.

    Icy (38a225)

  178. Goat-buggerers local #242 is well-represented in this thread

    Icy (38a225)

  179. Who called you a moron?

    Comment by Dohbiden — 12/14/2011 @ 10:20 am

    The person that he called a POS called the loser a moron. He still cannot grasp the distinction between legal age and actual biological age.

    He is trying to be a literalist, but fails quite drastically at it. Even a literalist knows that if 1+1=2, then naturally it follows that 1+1+1=3, this he is incapable of grasping.

    She turns 10 at midnight on her birthday. As soon as midnight has passed, she is older than 10.

    Comment by Milhouse — 12/12/2011 @ 3:01 pm

    As a true literalist would note, this is incorrect. She would no be 10 until the actual nanosecond of her birth. And being limited as humans, you would never recognize when you are exactly 5,50, or 75 yoa. The timespan is so infinitesimal that it passes too quickly to be perceived by mere humans.

    As legal ages are computed, if you are born at 11:59:59 pm on a certain date, you are considered to be one year older at midnight on the next anniversary date, thus you are considered one year older even though biologically you still have 23 hours 59 minutes, and 59 seconds to complete to be so.

    As legal age is considered, the age is only considered to be in completed years. Thus a person that is 10 years, 6 months, 23 days, 19 hours, 12 minutes, 42 seconds, 65 milliseconds, and 17 nanoseconds, has only completed 10 full years and is legally considered to be only 10 years old until their next anniversary of birth.

    When the law does consider actual months of age, it states so plainly. For example, when I first entered into law enforcement in Texas, you had to be age 19 years 6 months to become a sworn officer with full police powers. This was plainly stated in Texas Statute. I was actually only 19 years, 2 months of age when I was hired. This being accomplished by the fact that the academy was 4 months in length and would not be sworn in until the 6th month was completed. (I still had to wait for 2 days after graduating to complete the 6 month requirement) Also had to file a letter from the head of the law enforcement agency in order to purchase handguns and handgun ammunition to comply with federal law.

    Under most circumstances, your legal age is only considered to be in your total years completed, UNLESS IT IS STATED DIFFERENTLY IN STATUTE as cited above.

    As he states above;

    Not a lawyer, by the way. But I am a computer programmer, so I know that 10.02 > 10

    Comment by Milhouse — 12/12/2011 @ 2:53 pm
    nor is he in law enforcement, which proves he has no clue about legal age.

    peedoffamerican (ee1de0)

  180. Painted Jaguar: Who am I, do you ask? I am the central character in one of Mr. Kipling’s “Just So” stories, where, if you will let me further confuse things, I am outfoxed by a turtle and a hedgehog at the beginning of the armadillos. (This is futher confusing, you see, because we have no foxes by the deep, dark, turbid Amazon. I asked MD if I could change it to “outslothed”, but he shook his head and said it was not quite the same thing, like <10 and <=10 are not the same thing.)

    If you have a sense of humor, MD suggests you look me up, preferably to read about me to a child. I drop by every so often because MD likes to chuckle, and thinks others should chuckle too, especially when things become nonsensical and all screwed up, as you will find in the story.

    MD in Philly (3d3f72)


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