Comment by latch | Hacker News Reader

Comment by latch | Hacker News Reader

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I have very strong feelings both ways about this.

On the one hand, I believe in severe punishment for violent crimes and generally dislike juvenile protection for teenagers. Additionally, it isn't clear to me how broad the gag order was, but she should certainly be allowed to talk about what happened to her (though, if you agree with juvenile protection, I could see a gag order on anything which identifies them).

On the other hand, justice isn't only meant to serve the interest of the victim - which is something easily forgotten (which is why victims don't dictate the punishment!). What sentence best serves their rehabilitation? What best protects the public? What is an appropriate deterrent (gag order seems to kill that side of it).

It's complex, yet easy to get caught up by emotion and suggest that they themselves should first be sexually assaulted, then executed. I guess I'm trying to say that we don't know nearly enough about the case to have a valid objective opinion and even if we knew enough, most of us (myself included), don't know nearly enough about law, psychology and sociology to have an objective opinion.

Regardless, the victim has a Constitutionally protected right to speech. The purpose of gag orders is to protect the 6th Amendment rights of defendants. However, if those defendants are already convicted (which, in this case they are,) and an appeal is unlikely (they pled guilty) then the 6th Amendment purpose of the order is nullified.

As a result, a post-trial gag order is going to be exceptionally hard to justify because of 1st Amendment grounds.

Nebraska Press v. Stuart (1976) overturned a judge's gag order against the press. The entire point of a gag order or "protective order" is to protect the 6th Amendment rights of the defendant. The Supreme Court and Appeals Courts are clear in this regard.

The point is, this girl should take this case to Federal Appeals Court -- she'd win because the judge has no Constitutional leg to stand on, especially since this is post trial/conviction. She should have a right to speak about her experiences wherever and to whomever she pleases. Her right to speak cannot be infringed if there is no underlying Constitutional conflict (i.e. right to a fair trial, etc.)

My understanding is that constitutional rights of minors are not as absolute as adults.

You are incorrect. When it comes to public school, students and parents sign documents agreeing to be bound by a code of conduct and the like, effectively modifying the students' asbolute rights or even signing some rights away. But in general, citizens of the United States, regardless of age, have the same rights.

But in general, citizens of the United States, regardless of age, have the same rights.

That's simply not true. It wasn't until the 26th amendment, in 1971 that the right to vote was set as 18 in the US. Before that even that right was dependant on state based laws. (Note that under 18's don't have the right to vote at all)

OTOH, Tinker v. Des Moines Independent Community School District[1] holds that children DO have the right to freedom of expression.

http://people.howstuffworks.com/do-children-teenagers-have-c... is a pretty reasonable discussion

[1] http://en.wikipedia.org/wiki/Tinker_v._Des_Moines_Independen...

> signing some rights away.

If a "right" can be signed away, it's not really a right. I recall reading about a case where a woman agreed, in writing, to waive her right to maternity leave under FMLA. She then changed her mind, and the employer sued and lost on the grounds that rights cannot be signed away.

Looked at from that lens, you're arguing that a child's rights can be signed away. My argument is that therefore they aren't rights.

Certain rights can be signed away. A right that cannot be given up, even willingly, is called an 'inalienable' right.

Thus in most of the world today, you cannot willingly sell yourself into slavery.

Exactly.

But many of these rights (eg, the right to carry arms, the right to enter into contracts, etc) are limited to adults.

Quick googling and you seem to be right that this would likely not be enforceable (gag orders against reporters have not held up _during trial_...even for youths). If the media has the right to disclose the name of the accused, surely the victim has the right to disclose the name of the guilty.

I think my main point still stands. Her view on appropriate punishment is only a part (I'd argue a small part), of the overall consideration.

If we look beyond the gag order and her constitutional rights, I can play the devil's advocate and say that juvenile delinquents deserve special consideration. Should the poor/horrible decisions of a child/teen ruin their life for good? Or should they get a second chance? 10 years from now a potential employer might Google their names and decide not to hire them because of this. I'm not sure that's justice.

Yes, you have to carefully consider what is best, but I think public shaming is an appropriate part of punishing something like assault.

It's complex, yet easy to get caught up by emotion and suggest that they themselves should first be sexually assaulted, then executed.

People who advocate eye-for-an-eye (or in this case more-than-an-eye-for-an-eye) should be kept well away from the judicial process. The legal process should be about improving and protecting society, not simple visceral revenge.

The law institute in my state did a study where they found that when they polled the public and gave them details of the cases, the public actually suggested shorter sentences than were assigned. A far cry from the short-sighted 'hang-em-high' knee-jerking you see in tabloids.

Anyway, do we want a society that when you stumble, helps you back on track, or one that says 'fuck you' and kicks you in the face? People actually advocated those visceral punishments need to be called out on it, because they don't contribute anything useful and need to understand what it is they're actually saying.

While I agree with your larger point, that retribution (and worse) is not justice, I wouldn't put too much weight on the study you mention.

It's extraordinarily difficult to 'give details' in a completely neutral frame. Without knowing the details of the study, its hard to say more. It seems likely to me that they probably found what they were looking for.

Given the complexity of legal issues, you can explain away every legal study ever the way you just have.

The point that the study was making is that the vociferous folks frothing from the tabloids aren't operating from an informed position, so their opinion shouldn't be held as the canonical one to base policy on.

My favourite example is this: Politicians love to say "it's the will of the people" on topics like this. "Hey, you industry professionals might not like it, but it's what the uninformed general public want". Strangely, they never seem to take the same attitude when it comes to their own pay packets - all of a sudden it becomes "what the public doesn't understand"...

It was a combination of the (1) court order and (2) the juvenile court proceedings combined that appear to give grounds for charging the victim with revealing her attackers' names.

Juvenile court proceedings are confidential in every state. Witnesses (including victims) who appear in juvenile proceedings are informed that the names of all juveniles party to the case must remain confidential. This is both to protect the juveniles involved (victim, defendants, and witnesses) and to prevent their immature acts of youth from haunting them as adults (assuming no recidivism as an adult).

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