     In film and television, the concept of the conjugal visit is well known, often portrayed for humorous effect. For example, Arrested Development featured a conjugal visit between George Sr. and Lucille (and Kitty) in the Season 1 episode “Visiting Ours.”  Although you might be familiar with the term you may not know where the word “conjugal” comes from—and whether such visits really occur as a regular part of prison life.     To clear up the first question, conjugal is actually derived from Latin (surprise, surprise). The word conjugare means to join together in marriage; that word is in turn derived from com (“together”) and jugare (“yoke”). So for all you marriage haters, here’s evidence that even in ancient times, marriage was considered akin to having a yoke placed around your neck. This definition further suggests that the modern conjugal visit is extended only to an inmate’s spouse, although in practice that varies (as discussed below).      Turning to the second question, do conjugal visits really exist outside of prison films and sitcoms? The answer depends on where you live. At one extreme, conjugal visits are forbidden in the United Kingdom, although you can go to this site if you want to petition for a change.  At the other end of the spectrum, Canadian inmates can participate in the Private Family Visiting (PFV) program. Qualifying inmates can have a visit of up to 72 hours once every two months in apartment-like units within the correctional facility. The facility even provides food in the “apartment” (although the inmate or his family has to pay for it).  Furthermore, family visits are not limited to legal spouses; the qualifying inmate can be visited by common law partners, children, parents, and other persons “with whom, in the opinion of the institutional head, the inmate has a close familial bond, provided they are not inmates.”  Meaning, no inmate-inmate action for our neighbors to the North.      In the United States, conjugal visits are not allowed in the federal system.  State practice varies, with most states disallowing conjugal visits. A brief Internet search reveals that only six states allow conjugal visits:  California, Mississippi, Connecticut, New Mexico, New York, and Washington. Each state has its own rules as to who can visit and for how long. California, for instance, allows conjugal visits for same sex domestic partners; depending on the facility, such visits could last up to 72 hours in a small apartment (a la Canada).  In comparison, Washington only allows visits by spouses whom inmates married before being convicted of the offense for which they are incarcerated.      So as a takeaway, think twice before trying to hook up with an inmate.  Chances are you won’t be able to get to spend “a weekend at the bone yard” (as California inmates put it) anytime soon.  Of course, you can always get married to a Mississippi inmate. According to the Department of Corrections website, your conjugal visit will last one hour and include “soap, condoms, tissue, sheets, pillowcase, face towel and a bath towel.” If that doesn’t get your motor running, you’re just not human. 

Strictly Legal

Let Me Get Your Head On The Conjugal Bed

Hello podcast listeners! New episode should be available on iTunes within the next 24 hours, based on my Fighting Words article from April 2011.Thank you for listening and reading! Now that I'm settled in California, look for a new article soon on class action lawsuits (a.k.a. why lawyers had to save you from eating too much Nutella):-ann 

Them's Fightin' Words! (The Podcast)

Google “shortest celebrity marriages,” and the top results all mention Kim Kardashian, who famously announced that she was filing for divorce after just 72 days of wedded bliss.  Much more interesting than the Kardashian/Humphries union, however, is the seldom discussed 32-day marriage of Ernest Borgnine and Ethel Merman.  The reasons behind their split run the gamut from accusations that Merman’s ego was bruised by Borgnine’s greater fame to the allegation that Borgnine subjected Merman to the dreaded “Dutch Oven.” (Yikes!)  But whatever the real reasons behind its demise, Borgnine and Merman’s union was undoubtedly one of the more volatile in Hollywood history.Now, you might be wondering why Kardashian and Borgnine filed for divorce instead of seeking an annulment.  Among the uninitiated (read: never-divorced), an annulment seems like a quick and easy way to end a short-lived marriage.  In reality, annulment can be a complicated legal procedure and even harder to obtain than a no-fault divorce.  Finding its origin in the Latin nullus, meaning “no,” annulment can refer to both the Catholic Church’s procedure for declaring a marriage invalid and the legal process by which a marriage is essentially declared by a court to have never existed.  A Catholic annulment is dictated by Canon Law, a body of ecclesiastical law so byzantine (pun intended) that there are actually canon lawyers trained in its interpretation.  Therefore, this article will only discuss the civil form of annulment.  (For more information on Catholic marriage and annulment, you can look here).So you wake up, Hangover-style, from a three-day blackout with a ring on your finger and a stranger in bed beside you.  Can you get an annulment?  Possibly.  Unlike divorce, which dissolves an otherwise valid marriage, an annulment renders a marriage void—in essence, declaring that you are not only no longer married, but you were never actually married to begin with.  The law presumes that a contract is valid until proven otherwise; therefore, you’d have to come up with at least one reason why your marriage wasn’t validly entered into.  Grounds for annulment are a matter of state law, so for sake of simplicity we’ll assume you’re filing in Las Vegas and look at Nevada law. Like other states, Nevada distinguishes between void and voidable marriages.  A void marriage is one that is invalid from its attempted inception, with no further proceedings necessary; in Nevada, a marriage is void if the parties are related or if one or both of the parties is already married.  So in our example, if you wake up next to your brother—or if you happen to have a husband waiting for you back in Poughkeepsie—you’re in luck, your so-called marriage is void.If neither of these circumstances applies, you’d have to then look for a reason to declare your marriage voidable.  A voidable marriage is one that is presumed valid, but capable of being declared void for a reason set out by state law.  In Nevada, a marriage is voidable if either party is under 18 and did not obtain parental consent; if either party was incapable of entering a marriage for “want of understanding” (mental capacity); if consent was obtained by fraud; or for any other equitable reason that a court could find a contract to be void.*  So, depending on the circumstances, if you were underage, drunk, insane, or coerced into marriage by fraud, you could ask for an annulment, keeping in mind that when it comes to fraud, courts typically require that the lie go to the heart of marriage.  For example, if a party lies about the intent or capacity to have children, this could be considered fraudulent inducement to marry.To complicate matters, even if your disastrous union appears to be voidable, a court could still refuse to grant an annulment if it finds that you and your spouse persisted in the marriage in spite of its voidable nature.  For instance, if the parties become of age, sober up, restore their sanity, or discover the fraud, AND continue to live together as man and wife, they are no longer eligible for an annulment.  What does this mean for you?  Once you’ve figured out your marriage is voidable, you’d better move fast—in other words, inaction equals consent.So what if you’re unable to find grounds for annulment, or if you’ve moved too slowly and your once voidable marriage has become valid?  Not to despair; you’ll just have to get divorced like everyone else.  Or perhaps, once you’ve sobered up, regained your sanity, or come of age, you’ll realize that the schlub in bed next to you isn’t so bad after all.  Even Ernest Borgnine has been happily married to his fifth wife for the past 38 years, and if that lady can stand being Dutch-ovened by a 90-something Academy Award winner, there’s hope for us all.*You may have noticed that “failure to consummate” is missing from this list.  In Nevada, the inability or unwillingness of a party to seal the deal, so to speak, is not grounds for annulment.  However, a few states (such as Ohio) permit annulment based on failure to consummate the marriage. 

Annulled and Void

It is a truth universally acknowledged--at least by those in certain professions--that everyone lies. Everyone.Doctors know this. “Do you smoke?” they ask. “No,” the patient replies, when she really means, “Only when I’ve been drinking with my girlfriends who smoke, and I bum a smoke, but they only smoke Marlboro Lights.”Piano teachers know this. “Did you practice this week?” they ask. “Yes!” the student replies, when she really means, “For the forty-five minutes before I came to this lesson, and only because my mom made me.”And, of course, lawyers know this. Whether it’s clients, witnesses, opposing counsel, even (gasp) judges, everyone lies. Or omits the truth. Or shades the facts. It’s human nature; there are no Honest Abes.Nonetheless, although most people (whether they want to consciously acknowledge it or not) realize that everyone lies at least some of the time, lying is a crime in our society. So much so, that certain crimes are categorized based on the element of lying they contain.  The Latin term for such crimes is crimen falsi, quite literally, “crimes of deceit.”  Generally speaking, crimen falsi involves forgery or another form of “official” lying, such as perjury.  Moreover, crimen falsi occupies a special place among crimes when it comes to evidentiary rules during a trial.  For example, when a witness is testifying, the lawyer conducting cross examination typically cannot bring up a prior criminal conviction to undermine that witness’s testimony--unless the conviction was for a crimen falsi offense. The rationale? In assessing a witness’s credibility, the judge or jury should know if the witness has “officially” lied before.In today’s society, however--where we acknowledge that everyone lies; where a lie is as ubiquitous as long-expired profile pics on Facebook--can we say with any degree of certainty that one lie inevitably leads to another?  Furthermore, where do we draw the distinctions between “white” lies, morally repugnant lies, and criminal lies?The Ninth U.S. Circuit Court of Appeals recently attempted to answer that question in United States v. Alvarez, addressing the constitutionality of the Stolen Valor Act. In Alvarez, the court tackled the tricky question of what limits the First Amendment places on criminalizing speech, even if that speech is a lie.  It acknowledged that in many circumstances, the government can criminalize falsehoods without running afoul of constitutional protections--in other words, most lies do not merit First Amendment protection. However, the 9th Circuit held in this case that the Act was overly broad--criminalizing a written or spoken lie about military medals, without requiring proof of fraud, injury, or benefit*--and did not survive strict constitutional scrutiny.  This decision has lit up the Internets, with commentators running the gamut from tempered disagreement to vitriolic outrage. Without delving deeper into the constitutional debate, it is worth noting the deep chord this decision has struck on the collective American psyche.  In today’s society, technology creates an illusion of intimacy despite physical separation, requiring a higher degree of trust that others are projecting an authentic version of themselves.  Furthermore, lies can be easily made and spread, but also live forever regardless of the speaker’s intent.  This creates a sort of cognitive dissonance.  We don't want to be lied to, especially about something noble like military awards.  On the other hand, we practitioners of “harmless” puffery might prefer the government not be able to throw us in the clink when such exaggerations come back to haunt us.Alvarez’s fate may ultimately lie with the U.S. Supreme Court, but in the meantime this decision has opened no floodgates; crimen falsi offenses are here to stay, and many types of false speech continue to be unprotected and lawfully criminalized. In other words, even if they both lead to the same result, there’s still a difference between a padded bra and a padded resume.*The Stolen Valor Act reads:“Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both [one year for more prestigious awards like the Medal of Honor].” 

Criminal Lies

On May 1st, President Barack Obama announced to the world that U.S. forces had killed Osama bin Laden.  Among the predictable reactions was a large dose of skepticism, especially when the White House later briefed that bin Laden had been buried at sea.  Naysayers across the globe demanded proof, namely photos or videos of bin Laden’s body. As of this writing, President Obama has decided not to release the purportedly grisly photographs.The clamor to see “the body” reminds me of the term corpus delicti.  It is derived from Latin for body (corpus) and crime (delictum), so literally it means “the body of the crime.”  As a legal term, corpus delicti has evolved to mean the body of evidence to prove a crime. So, for homicide it could be a literal corpus (but doesn’t have to be—more on that later).  In other instances, however, the corpus delicti could be evidence like stolen items (for larceny) or a torched house (for arson).  Many state jurisdictions still follow the common law corpus delicti rule, which prevents a defendant’s out-of-court confession from being admitted unless accompanied by independent evidence that the charged crime has occurred (the corpus delicti).  This rule’s purpose is to prevent convictions based solely on an accused’s confession—important when considering that when the rule was developed a few centuries ago, false confessions stemming from mental illness or coercion were not uncommon.*A look at a British case cited as one of the forbears of the corpus delicti rule demonstrates the drama that ensues when a murder victim shows up for dinner one day.  In Perry’s Case, Mr. William Harrison went missing and his servant, John Perry, was cast as the prime suspect. Initially denying any involvement, Perry eventually confessed that he, his mother, and brother had killed Mr. Harrison and dumped his corpus in a swamp. Based solely on Perry’s confession, all three were convicted and executed.  (Happy Mother’s Day!) Years later, Mr. Harrison returned, claiming he had been kidnapped by pirates and sold into slavery in Turkey, which apparently was the 1600’s equivalent of going to rehab.  Good news for Harrison’s friends; bad news for the Perrys.Remember when I said before that the corpus delicti rule only requires evidence of the crime—it doesn’t literally require the prosecution to produce a body?  In a hilarious misunderstanding, 1940s British serial killer John George Haigh thought that he could avoid being convicted of murder as long as made all his corpuses disappear. Now, if you’ve ever watched Dexter, you know that serial killing produces one unholy mess.  So Haigh decided to give his victims a bath—a sulfuric acid bath, to be exact, reducing those bulky bodies to a compact slurry. Later on, inconvenient bits of evidence (gallstones, dentures, etc.) helped convict him, and he hung for his crimes, after earning the nickname “The Acid Bath Murderer” (seriously, that’s the best the British press could do?).So there you have it—even the “body of evidence” rule doesn’t require an actual body.  Perhaps the President is making the best call; after all, our judicial system allows us to convict someone of murder based on the same amount of (or perhaps less) evidence than the government has provided to prove ObL’s demise.  Nonetheless, some diehard skeptics will always need more than a gallon of slurry to prove that the body really has hit the floor.*The federal system and several states have replaced the corpus delicti rule with a corroboration rule, which requires some evidence to demonstrate the trustworthiness of an out-of-court confession—not necessarily evidence that the crime itself has occurred. For a much better explanation than I can provide here, I recommend this Ohio State Law Journal article by Professor David Moran. 

Corpus Delicti: Let the [Body] Hit the Floor

My office building is downwind from a Love’s Bakery. In case you didn’t know, Love’s is “[t]he largest wholesale baker of original and distributed breads, bunds, donuts and pies in Hawaii.” (Don’t ask me what a “bund” is--that quote is direct from their website.) At any rate, those breads and bunds and whatever else they’re baking smell absolutely amazing. As I drove past Love’s tonight on my way home, I thought about bread, and flour, and a certain Mr. Byrne of Liverpool, England. About 150 years ago, Byrne was walking along Scotland Road when a barrel of flour fell from a second floor window and knocked him out. Apparently he had been walking by the window of the defendant’s shop (Mr. Boadle, I presume), who just happened to be a “dealer in flour.” Naturally, Byrne filed a lawsuit against Boadle to get some quid for his troubles. After all, barrels of flour aren’t just supposed to fall out of windows, right? Well, what seems like an easy question to answer wasn’t so easy for the Exchequer Court in 1863. To be awarded any compensation, Byrne had to show that Boadle had some responsibility for what happened. In other words, Byrne had to show that Boadle was negligent--that he had a duty to be careful, that he failed in that duty, and that his failure caused Byrne’s injuries. Problem was, Byrne couldn’t really show any action on the part of Boadle. One minute Byrne was ambling down Scotland Road, then next minute he’s waking up covered in flour. The witnesses’ testimony didn’t help, either--at best, one witness saw a barrel of flour falling from Boadle’s window, but couldn’t explain how it happened. So at the end of the day, are we left with some poor guy, laid up for two weeks, covered in flour and out of luck because no one saw Boadle do anything untoward with his flour barrels? Not so fast, wrote Chief Baron Pollock in his opinion. Barrels of flour don’t just fall on their own out of second-story windows; Boadle must have done something negligent for that to have happened. Or, as Pollock wrote, “There are certain cases of which it may be said res ipsa loquitur . . . . A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous.” And with that, Mr. Byrne got his fifty quid. And thus was born the legal term res ipsa loquitur--the thing speaks for itself. In this case, “the thing” was the falling flour barrel; we don’t need other evidence of negligence when we’ve got 100 pounds of flying carbs to testify for us. Sometimes, the situation itself provides the explanation. (Side note--Chief Baron is a much hotter title than Chief Justice. In my opinion. Just sayin’.) -ann Byrne v. Boadle opinion 

Res Ipsa Loquitur

“My client may be a bad husband. He may be a cheater and a sinner. But he is NOT a criminal.” This less-than-ringing endorsement pretty much sums up the defense theory in the case of U.S. v. John Edwards.  As of today the jury is still deliberating the fate of the perfectly-coiffed former Senator and one-time Presidential hopeful.  Edwards is accused of violating several federal laws involving the use of campaign contributions (yawn), to cover up an affair with crazy-lady-baby-mama Rielle Hunter (now we’re talking), from saintly cancer-stricken wife Elizabeth Edwards (zing!).  Rather than de-emphasize Edwards’ rather awful behavior, the defense argues that the $900,000-plus used to squirrel away Rielle in a posh love shack were gifts—not campaign contributions.  (Go ahead, sleep with her! She's not psycho!)It’s a legit defense, given that the jury is forbidden to find Edwards guilty based solely on his character as a bad husband.1  But what keeps this case at the top of the tabloids isn’t the price tag, but the sordid tale of love, lies, and betrayal.  Underscoring the drama is the specter of Elizabeth Edwards, a constant presence in the trial despite succumbing to breast cancer in 2010.  Shocking testimony describing a confrontation with Edwards where she literally bared herself to him while accusing him of cheating dominated the media and set the tone for this trial.Given these facts, it’s tempting to speculate how Elizabeth—also an accomplished lawyer—might have handled this situation were she still alive.  Before her death, she separated from Edwards but didn’t file for divorce.  She did, however, threaten one of Edwards’ former aides with an “alienation of affection” lawsuit.  Now, if you’ve never heard of this concept, you’re not alone; only a handful of states still recognize this common law tort.2  But if you’re in one of those states and you’re tempted to get involved with a married guy or gal, you’d better read on.An alienation of affection lawsuit allows a wronged spouse to sue a third party for breaking up the marriage.  Although Elizabeth Edwards threatened this lawsuit against the former aide who covered for his boss, alienation of affection is usually aimed toward a direct interloper, typically a the “other” man or woman.  Given that John and Elizabeth Edwards are both from North Carolina (they met as students at my alma mater, UNC), let’s take a look at how that state defines it. A claim for alienation of affection requires proving each of these elements:(1) The marriage entailed love between the spouses in some degree; (2) The spousal love was alienated and destroyed; and (3) Defendant’s malicious conduct contributed to or caused the loss of affection.So as you can see, you don’t have to prove that defendant had sex with your spouse, which is why alienation of affection lawsuits could be brought against any third party (in-laws? World of Warcraft guild members? The possibilities are endless).  (Your husband might be cheating with THIS guy.)But it gets tricky when you have to prove both love and its loss.  These elements expose the law’s antiquated roots, bringing to mind concepts of chivalry and ungentlemanly conduct in an age where sexting someone on your iPhone is a form of social discourse.Don’t be fooled by the old-school language, however—alienation of affection lawsuits occur regularly nowadays, and the result can mean big bucks for the spurned spouse.  A hefty verdict was handed down in North Carolina in 2010 in the case of Dr. Lynn Arcara. She sued her former BFF, Susan Pecoraro, who slept with Mr. Arcara while in town to help the Arcaras prepare for the arrival of their newborn. The jury found in favor of the wife to the tune of a $5.8 million judgment against the mistress.3  As Dr. Arcara’s attorney argued, “She came down and helped my client paint her nursery and in the process she helped herself to my client's husband.”  Money may not equal happiness, but I’m guessing six million bucks might help to heal a broken heart.So let’s say you’re in a position to bring an alienation of affection lawsuit, but you’re nervous about proving some of the elements… like the genuine love and affection part?  Well, depending on the state you may have another option, the lawsuit of “criminal conversation.”  This common law tort essentially requires you only prove (1) someone had sex (2) with your spouse while you were married.  However, it can sometimes be harder in court to prove sex, than to prove love—but that’s a topic for another blog.Until then, I encourage you to follow the advice of Dr. Arcara’s lawyer: “If you want to have an affair, you need to choose someone who doesn't reside in North Carolina [or Hawaii, Illinois, Mississippi, New Mexico, South Dakota, or Utah] to have it with because you are going to open yourself up to a liability if you do so.”Couldn’t have said it better myself.*1. Generally speaking, Federal Rule of Evidence 404(a) prohibits use of character evidence to prove that the defendant acted in conformity with that character, to prove the charged misconduct.2. Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota and Utah.3. You may be wondering how the jury came up with this figure; it’s based on the money Dr. Arcara lost due to the divorce. Her husband was a retired Army officer, so most likely the figure is based on future earnings and pension. I wouldn’t be surprised if it also included punitive damages against the mistress.*Except for adding in a few more states, of course. 

hubhopper

Strictly Legal

hubhopper