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View Diary: Guest On FOX NEWS Hit With Racist Rape/Death Threats, After Opposing Guns As A Defense Against Rape (123 comments)

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  •  offensive speech but not a threat. (1+ / 0-)
    Recommended by:
    Leslie Salzillo

    "I hope you get raped" while offensive, disgusting and
    classless is not a direct threat.  No different then
    "I Hope you get Cancer". the legal test is "to reasonably
    fear physical injury,,,"

    Sorry, if Michael Shapiro had said "I am going to rape you right now, so you know what it means", yeah, that's assault.
    If he had even said "I am going to rape you before next sunday's talk show, so you can go and talk about your
    experience", yeah, that's a crime too.

    but hoping for a vague outcome no matter how disgusting is merely a statement of opinion.

    You can repeat the exercise for "You need to be gang-raped".

    (Now I'm not a lawyer, but, I think I know how to read the plain language of a statute)

    •  It doesn't have to be assault (6+ / 0-)

      to constitute harassment or stalking charges. The threat accompanied by racist language can be the equivalent of a crime since it has been legislated as one.

      It's not a vague outcome at all sending a twitter message using violent language especially to a woman who had just been discussing rape on national TV.

      And I am a lawyer.

      In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, comes wisdom through the awful grace of God ~RFK

      by vcmvo2 on Sun Mar 10, 2013 at 05:03:48 PM PDT

      [ Parent ]

      •  I read the statute (0+ / 0-)
        "a person who “[w]ith intent to harass, annoy or alarm a specific person, intentionally engages in a course of conduct directed at such person which is likely to cause such person to reasonably fear physical injury or serious physical injury, the commission of a sex offense against, or the kidnapping, unlawful imprisonment or death of such person or a member of such person’s immediate family”"
        So

        Let's break it down by Elements

        1) A Person  (That's Michael Shapiro)
        2) With Intent ( Deliberate sending tagged to the reader)
        3) to Harrass, Annoy or alarm ( Lets call it annoy)
        4) A specific person (That's her)
        5) directed at such person ( I'll accept it provisionally)
        6) To reasonably fear( That's the problem) Injury.

        wishing a bad thing would happen is no different, then,
        praying that god strikes down someone.

        can you tell me, that element is satisfied?

        and if the statute law applies, then, why don't you file a civil suit using the criminal statute as a basis for the Tort?

        •  Nope (0+ / 0-)

          Harrassing is the element and if the communication causes fear of any of the things mentioned the law is satisfied.

          And combine that with a racist hate term and it's a criminal offense. The key is using communication that crosses state lines or perhaps even international ones in committing harassment or stalking.

          You don't get to judge the "reasonableness" of her fear because that also has legal, evidentiary standards.

          The statute is criminal not civil. So the state prosecutes the crime. If she cares to pursue a tort claim than she has to assemble the elements of the tort and get an attorney for a civil lawsuit. That used to be the only way to stop these people until governments decided to monitor behavior that crosses the line.

          Michael Schapiro can get a lawyer to defend himself. And I would suggest he do that.

          In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, comes wisdom through the awful grace of God ~RFK

          by vcmvo2 on Mon Mar 11, 2013 at 09:36:10 AM PDT

          [ Parent ]

          •  Reasonable Fear (0+ / 0-)

            Now I'm not a lawyer, but I've taken a class in criminal law.

            "Reasonable" refers not to the victim but to a "Reasonable Person", that mythical person who

            "he "reasonable person" is a composite of a relevant community's judgment as to how a typical member of said community should behave in situations that might pose a threat of harm (through action or inaction) to the public"

            it's not in her eyes, or your eyes, or my eyes, but some communities judgement of a typical person.

            Seems to me wishing ill to a person is not "Reasonably"
            an imminent or direct threat or legally cognizable as such.

            It's all passive voice, it's all indefinite, and it's all ambigous.

            If he had said "My boys are going to gang rape you before the next talk show", now that's something.

            or

            "I will see you some night real soon, and you will know what you are talking about rape"...  yeah.

            but, I don't see it.

            Where would you draw the line at a reasonable person test here?

            Take that last line...  Compose a acceptable ill wish.

            •  I used to be a criminal defense lawyer (1+ / 0-)
              Recommended by:
              patbahn

              The reasonable person test is a civil standard.

              Criminal law statutes have different standards and the interpretation the NYC attorney general puts on it. In that sense, if it goes to trial whether bench or jury, the standard is still set by legislative intent as well as jurisdictional prosecutions and judicial interpretation.

              Criminal law is not based on community standards of reasonableness.

              The intent is established in the legislation. The police act on a complaint, the DA decides whether to prosecute it usually based on evidence, likelihood of sucess etc... It doesn't have to appear to be reasonable at all.

              In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, comes wisdom through the awful grace of God ~RFK

              by vcmvo2 on Mon Mar 11, 2013 at 12:58:35 PM PDT

              [ Parent ]

              •  so why does the statute say "Reasonably fear" (1+ / 0-)
                Recommended by:
                vcmvo2

                unless there is some statutory construction,
                wouldn't it revert to the civil reasonable person standard?

                When you look at something like Criminal negligence it uses
                the phrase "UNreasonably negligent", absent statutory
                language, isn't it going to default to Blacks Law Dictionary?

                •  well reasonableness goes to (1+ / 0-)
                  Recommended by:
                  patbahn

                  legislative intent but civil standards cannot apply to criminal law because the purpose is essentially different. One of the bases for that difference is the punitive aspect of criminal law and another aspect is desire for deterrence.

                  Even when they use criminal negligence the standard is much different from the civil one. Civil law will usually end up with fines even large ones whereas in criminal law they can literally put you away for a set period of time, and of course there are capital crimes where the state can deprive you of life.

                  So there have been attempts to reform criminal law (model penal code) where a general reasonable man standard can apply but the main difficulty has been how to punish someone, what level of mens rea (ie criminal intent) is required.

                  It's like apples and oranges and that is usually why lawyers specialize in one area or the other.

                  In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, comes wisdom through the awful grace of God ~RFK

                  by vcmvo2 on Mon Mar 11, 2013 at 07:19:57 PM PDT

                  [ Parent ]

                  •  given this is NY Law (0+ / 0-)

                    can you point me to the statutory test for
                    "Reasonable" in statute?

                    Look under criminal assault it usually has to be immediate
                    to be a cognizable threat.

                    Now this is supposed to be a harassment charge, but,
                    still where is the reasonable fear component here?

                    would you be willing to press criminal charges if this person had  wished the subject to be run over by a car?

    •  Just like "Second Amendment remedies" were not (1+ / 0-)
      Recommended by:
      RockyMtnLib

      an actual threat, that is until Gabby Giffords was shot, right?

      Then they came for me - and by that time there was nobody left to speak up.

      by DefendOurConstitution on Mon Mar 11, 2013 at 05:32:28 AM PDT

      [ Parent ]

      •  Troubling as it was, yes. (0+ / 0-)

        Criminal law requires a direct connection between
        a speaker and an act.

        "I want all my listeners to take their guns down
        and go to this event and show Gabby what a 2nd amendment
        remedy really is. 357 times, 44 times, 303 times.
        Do it right now, while she's standing right over there".

        well that's probably incitement to riot.

        "Will someone please just shoot her in the head, so we can
        get a better congresswoman?" in a room full of people with guns?  That's close to Accessory.

        but this vague reckless speech like Bachmanns or Palins crosshairs thing?  Well, we have a strong first amendment in this country.

        in the 1960's the Black Panthers showed up at places carrying guns.

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