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Friday, September 30, 2005

A Sentence of Celibacy

This just in, via everyone's favorite high-quality news source, Matt Drudge:

No sex. That's part of a sentence imposed on a 17-old-girl by Texas state district judge Lauri Blake.

She's ordered the young drug offender not have sex as long as she is living with her parents and attending school, as a condition of her probation.

Are there constitutional objections here? Perhaps. Is this cruel and unusual punishment? (I can just see the jokes likely to come out of that question. If the ACLU raises such a claim, there will be a race-to-the-bottom by late-night comics, to see who'll be the first to quip "based on my high school experience, no sex at 17 is, alas, not at all unusual.")

Does the state have a legitimate interest here? How much of that interest, if any, comes from the fact that the case deals with a minor? (Could the judge sentence a 25-year-old to no sex?) On the other hand, doesn't the judge have the power to sentence someone to no sex by simply putting her in prison? Does the greater (ability to put in prison) include the lesser (no sex while on probation)?

Perhaps our crim law gurus can weigh in here. In any case, the defendant in the case should probably be counting her blessings. After all, at least she wasn't sentenced to church time. Now that would be cruel and unusual.

Posted by Kaimi Wenger on September 30, 2005 at 12:36 PM in Criminal Law | Permalink


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The issues raised by Judge Blake's conduct are real simple and straight forward: Is the rule of law more important than the "made up" rules this crazy judge follows in imposing her own sense of political and moral "correctness". The age of consent for sexual relations in Texas is 17 years old. Should a single person of that age be engaged in sexual relations? Probably not a good idea, and her parents, pastor, and friends would probably counsel against such choice. But, no governmental official, including a judge, should order her not to engage in legal conduct under compulsion of prison. What's next? Will Blake order probationers to go to church in order to stay out of prison? And, I wouldn't be a bit surprised if she would exercise her omnipotence to instruct and direct to "the right church".

This is not an issue of politics. The newly confirmed Chief Justice of the United States, John Roberts , stated that judges should be "modest" and should not make law. Judges should follow the law. Judge Blake is not only trying to "make law" but she is breaking the law. Where does she get off on controlling citizen's lawful sexual activities, right to body art, choice of clothing, and jewelry? The system has regulated the conduct of those under probation, now called community supervision, for decades. The conditions of staying out of jail such as don't commit anymore criminal acts, avoid folks with criminal records, get a job or stay in school, just for example, work well and are time tested. But, a judge's order that you have a choice - no sex, no tattoos, no piercings, etc., or you go to jail is something that we think might be the norm in Stalin's Russia or Hitler's Germany. Not in America. Not in Texas. Not in Fannin and Grayson Counties. Not now. Not ever!

Judge Blake remains unrestrained by our statutes, common law and constitution. She is a clear and present danger. She should be removed from office. What is the judicial branch doing about this rogue?

Posted by: David | Oct 4, 2005 12:38:47 AM

My first instinct would be to dismiss this as perfectly reasonable, and entirely a state matter; however, arguendo, would this not fall under the banner of unusual punishment? Maybe I've just not had enough caffeine yet to think straight, but wasn't one of the original purposes of the C&I clause and its evolutionary antecedents - for example, the English Bill of Rights 1689, where it appeared both in the forms "illegal and cruel punishments" and "cruel and unusual punishments" - to preclude the imposition of ad hoc punishments by judges, such that a person could only be sentenced according to the punishments admissible by law?

Posted by: Simon | Oct 3, 2005 9:23:04 AM

Are there constitutional objections here?

Yep. Everyone will cite Lawrence, but there's a more direct precedent.
See Carey v. Population Services Intl., 431 U.S. 678 (1977) (unmarried minors have fundamental right to contraceptives). The fundamental right to contraceptives hinged on the fundamental right to make child rearing decisions, that is, to decide whether to have children. Having sex for the purpose of having children (or not) fits nicely in there. Still, I wouldn't be surprised to read a case holding that the right to contraceptives does not presuppose the right to have sex. Judges can be funny like that.

Anyone have something directly on point?

Posted by: Mike | Sep 30, 2005 5:45:23 PM

In my experience, late-night comics generally don't say "alas."

Posted by: Xavier | Sep 30, 2005 2:08:41 PM

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