Legal notes: Two counts of, “You’re kidding, right?”


Really, I didn’t see this coming:

In an effort to help Idaho Sen. Larry Craig, the American Civil Liberties Union is arguing that people who have sex in public bathrooms have an expectation of privacy ….

…. The ACLU wrote that a Minnesota Supreme Court ruling 38 years ago found that people who have sex in closed stalls in public restrooms “have a reasonable expectation of privacy.”

That means the state cannot prove Craig was inviting the undercover officer to have sex in public, the ACLU wrote ….

…. The ACLU argued that even if Craig was inviting the officer to have sex, that wouldn’t be illegal …..

…. The ACLU also pointed out that Craig was originally charged with interference with privacy. The ACLU said that was an admission by the state that people in the bathroom stall expect privacy.

Strangely, it kind of makes sense. I suppose it’s a Minnesota thing, and I can’t guarantee the same principle holds in Washington state. So I don’t know if it will help anyone who gets kicked out of the Showbox for smoking pot in the bathroom. Nonetheless, stay tuned.

• • •

Neither did I expect this:

The domestic-violence charge against Seattle City Councilman Richard McIver has been dropped by King County prosecutors a day before the case was set to go to trial ….

…. King County District Court Judge Linda Thompson ruled Tuesday that the 911 calls and statements McIver’s wife made to police after an altercation Oct. 10 would not be admissible as evidence in the trial, which was scheduled to start Wednesday. The ruling was based, in large part, on Marlaina Kiner-McIver’s demeanor when she spoke with police and a 911 dispatcher.

Because Kiner-McIver was calm and had time to reflect on her comments, her statements are not considered “excited utterances” and therefore are hearsay and cannot be used to support the charges, Thompson said. Excited utterances are generally considered admissible because it’s assumed someone under the stress of an upsetting incident could not spontaneously lie.

Citing the same reason, Thompson also ruled that prosecutors could not question the Seattle police officer who responded to the McIver home just after midnight on Oct. 10 about what Kiner-McIver told him.

Okay, now, there is more to this story. On the one hand, McIver had claimed his innocence, but has also expressed that he’s angry with the judicial system, saying that people had no right to delve into his private life. Apparently, when his wife calls the police to report a domestic violence incident, McIver considers that part of his private life.

To the other, McIver’s wife—at least, according to the councilman’s attorney—has recanted the accusation, claiming that she made up the story because she was upset with he husband. There is no word, as yet, whether Ms. Kiner-McIver will be charged with any wrongdoing for filing a false police report.

But I find the argument that a woman who reports domestic violence is unreliable if she is not blithering upset to be rather chilling. The suggestion that a calm, coherent narrative of events in question makes a witness unreliable seems somehow … well … wrong.

Consider old episodes of COPS. Or the sordid 911 tapes of this or that scandal. A police officer or 911 operator might be heard to say, “Ma’am, you need to calm down. I can’t understand you. Can you please calm down?” And think of those enraged, bawling women we saw on COPS, shouting about how her (bleep) husband (bleep)ing (bleep) and (bleep-bleep-bleep). Perhaps it makes me a horrible person, but someone so infuriated just might be prone to exaggeration. They are, in theory, at least as unreliable as Judge Thompson would imagine someone calm enough to calculate a lie.

The presumption of calculation, I think, is what seems so difficult. It suggests an unfortunate circumstance for our police officers that, in domestic violence cases, they are apparently obliged to disbelieve the person who can give them a calm, coherent account of whatever events have transpired.

Perhaps, then, it is simply best to wonder what Seattle Times reporters Natalie Singer and Jennifer Sullivan have left out of their report. Because, frankly, something just doesn’t add up.

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