Mother-Son Incest Case

[Martinus]

I think there is a fine line, but I agree with The Brain that too much prosecutorial discretion is not a good thing, if for no other reason then because you cannot ensure uniform application. It is much more preferable to have the law drafted in a way that lets people know in advance whether they will be prosecuted for some action or not.

[Sheilbh]

I'm not sure if that should be in the law itself. I think it's better to have the law just dealing with the offence and then a publicly available list of factors that the prosecutor must take into consideration in deciding whether to prosecute or not, and a method of querying a prosecutor's decision, for example by reference to their superior.

[Barrister]

I'm not sure if that should be in the law itself. I think it's better to have the law just dealing with the offence and then a publicly available list of factors that the prosecutor must take into consideration in deciding whether to prosecute or not, and a method of querying a prosecutor's decision, for example by reference to their superior.

[crazy canuck]

That's New Mexico but many other states explicitly cover adoptive relationships as well.

I saw that.  I just noted that the New mexico law cannot currently be justified as being one that prevents an abuse of the parent-child relationship, because it refers only to biological relationship, and exclude adoptive ones.  I fully support laws that prevent the sexual abuse of parent-child relationship (or any relationship of authority).  I don't think Mew Mexico's law, as written, does that.

Interesting.  You saw that it was a bad example of outlier legislation but you choose to use it as your example that my general premise was flawed?  The really funny thing is I picture you madly googling away trying to find anything that might contradict my statement.  Congratulations, you found the exception that proves the rule. /golf clap/

[The Minsky Moment]

I assume grumbler mentioned NM because the OP case was from that state.

My broader point though is that it can be dangerous to read too deeply into these statutes in terms of policy intentionality.  New Mexico was a conquered territory - rather than carry over Mexican law, it appears that the first military governor simply put in place a modified version of a mid 19th century compilation of Missouri statutes.  It's possible the incest statute dates back to that and no one bothered to review it since then.

[Razgovory]

That's New Mexico but many other states explicitly cover adoptive relationships as well.

I saw that.  I just noted that the New mexico law cannot currently be justified as being one that prevents an abuse of the parent-child relationship, because it refers only to biological relationship, and exclude adoptive ones.  I fully support laws that prevent the sexual abuse of parent-child relationship (or any relationship of authority).  I don't think Mew Mexico's law, as written, does that.

Interesting.  You saw that it was a bad example of outlier legislation but you choose to use it as your example that my general premise was flawed?  The really funny thing is I picture you madly googling away trying to find anything that might contradict my statement.  Congratulations, you found the exception that proves the rule. /golf clap/

I'm sure he had that case memorized.  I mean, he's a lawyer, right?

[grumbler]

I assume grumbler mentioned NM because the OP case was from that state.

My broader point though is that it can be dangerous to read too deeply into these statutes in terms of policy intentionality.  New Mexico was a conquered territory - rather than carry over Mexican law, it appears that the first military governor simply put in place a modified version of a mid 19th century compilation of Missouri statutes.  It's possible the incest statute dates back to that and no one bothered to review it since then.

I don't disagree with that interpretation at all.  I simply noted that the law in this particular case was clearly not crafted with the intent of outlawing an abuse of power for sexual purposes, but rather to preventing sexual activity between people with a defined level of consanguinity - i.e. the old "ickyness factor."  It doesn't really matter whether the law was crafted in New Mexico or Missouri, or even just inherited from the common law.

[grumbler]

I'm not sure if that should be in the law itself. I think it's better to have the law just dealing with the offence and then a publicly available list of factors that the prosecutor must take into consideration in deciding whether to prosecute or not, and a method of querying a prosecutor's decision, for example by reference to their superior.

My understanding of prosecutorial discretion was that it primarily related to the prosecutors deciding not to waste time on cases that they felt had poor chances of success, not that it was supposed to allow them to unilaterally "forgive" illegal behaviors that they thought were unjustly banned.  Am I mistaken?

[jimmy olsen]

Malthus did a pretty good job of convincing me that there are some good reasons to maintain this restriction despite individual cases where it seems pretty meaningless.

All he did was a post a poem about Oedipus?

[crazy canuck]

I assume grumbler mentioned NM because the OP case was from that state.

My broader point though is that it can be dangerous to read too deeply into these statutes in terms of policy intentionality.  New Mexico was a conquered territory - rather than carry over Mexican law, it appears that the first military governor simply put in place a modified version of a mid 19th century compilation of Missouri statutes.  It's possible the incest statute dates back to that and no one bothered to review it since then.

Yes, I assume so as well.  I just find it particularly interesting that even though he now says he knows it is a legislative outlier he still used it as an example to suggest that the rationale which underpins more modern legislation was my invention.

[crazy canuck]

I'm not sure if that should be in the law itself. I think it's better to have the law just dealing with the offence and then a publicly available list of factors that the prosecutor must take into consideration in deciding whether to prosecute or not, and a method of querying a prosecutor's decision, for example by reference to their superior.

My understanding of prosecutorial discretion was that it primarily related to the prosecutors deciding not to waste time on cases that they felt had poor chances of success, not that it was supposed to allow them to unilaterally "forgive" illegal behaviors that they thought were unjustly banned.  Am I mistaken?

Not sure what state that might be.  I assume you will be able to find at least one of the 50 where the prospect for winning the case is all that matters.  But normally the interests of justice is also a factor in exercising discretion.

[Savonarola]

All he did was a post a poem about Oedipus?

Those were lyrics to a song by Tom Lehrer:  Oedipus Rex. 

You may not recognize the name (although An Evening Wasted with Tom Lehrer is quite entertaining), but you heard his work on The Electric Company.