Leonard Link

Two Gay African Felons Denied Relief by Third Circuit Under Convention Against Torture

Two gay men from Africa who engaged in criminal activity in the United States and thus were found statutorily ineligible for asylum or withholding of removal were also denied relief under the Convention Against Torture (CAT) by different panels of the U.S. Court of Appeals for the Third Circuit. In each case, the court found that the petitioner had failed to show that he would be likely to be subjected to government-imposed or abetted torture in his home country if deported. Mark v. Attorney General, 2009 WL 1497248 (3^rd Cir., May 29, 2009) (not officially published); Awuku v. Attorney General, 2009 WL 1741500 (3^rd Cir., June 22, 2009) (not officially published). Both opinions were per curiam.

In the earlier of the two cases, Mr. Mark, a native and citizen of Liberia, entered the U.S. on a visitor’s visa in 1988 and had "temporary protected status" until 2000. His conviction on drug-dealing and possession charges led to felony convictions and a cumulative sentence of 57 months, and Homeland Security sought his deportation. Under the law, a felon sentenced to 60 months or more must be deported. Mark argued that the Attorney General should exercise discretion to grant withholding of departure, which is possible under the statute for felons sentenced to fewer than 60 months, or should grant relief against deportation under the Convention Against Torture (CAT).

As summarized by the court, "He testified that, before he left Liberia at age twenty, fellow students taunted, beat, and on one occasion stabbed him because of his homosexuality. He testified that he was never arrested because of his homosexuality, and that police instead sometimes helped him and made sure he got home safely. He also fears that he will not be able to obtain HIV medication in Liberia." The Immigration Judge (IJ) found him ineligible for withholding of removal or CAT relief, and he appealed to the Board of Immigration Appeals, which adopted the IJ’s reasoning and denied relief.

The 3^rd Circuit panel noted that it was up to the Attorney General, not the court, to exercise discretion on whether to consider a particular applicant’s felony record as not serious enough to require deportation when his cumulative sentence fell below 60 months. As to the CAT claim, the IJ had mentioned that there was some evidence in the record that "homosexuality is illegal in Liberia," but that Mark had not presented any evidence "that he would be arrested or subjected to mistreatment, whether rising to the level of torture or otherwise, if returned to Liberia." When questioned at the hearing, Mark, who represented himself pro se, testified: "I didn’t know what will happen, Judge, when you send me back home. I don’t know. I don’t have no clue what will happen to me when I, send me back home. And I’m scared."

The court stated that the burden is on the applicant to prove eligibility for relief under the CAT, and that although the IJ is responsible for seeing that a hearing record is made on the necessary facts, the burden of proof nonetheless remains with the petitioner. In this case, the IJ considered the State Department country report on Liberia as well as a newspaper article indicating that the country was cooperating with the UN on a program to provide access to HIV medication. Neither of these sources supported a contention that Mark would more likely than not face torture in Liberia, and he presented no specific evidence that this was likely, merely stating his fears. Thus, the 3^rd Circuit rejected his appeal.

In the second case, Mr. Awuku, a native and citizen of Ghana, had entered the U.S. in 1993 and received lawful permanent resident status, but over the following years accumulated several firearm and drug convictions, and Homeland Security initiated removal proceedings. Based on his criminal record, he was statutorily ineligible for asylum or withholding of removal, so his only hope to remain in the U.S. was relief under the CAT. In this case, it appears that there was plenty of evidence in the hearing record that conditions for gay people in Ghana are horrific, but the IJ, the BIA and the court all agreed that this was not enough.

Reading the court’s summation of the evidence leads one to conclude that empathy is not a characteristic of decisionmakers in the judicial system when dealing with alien felons, especially those convicted of firearms and drug offenses. The BIA stated, with the approval of the court apparently, that for purposes of the CAT, "torture is ‘an extreme form of cruel and inhuman treatment, that does not include ‘rough and deplorable treatment, such as police brutality.’"

Consider this quotation from the opinon: "And while the IJ did note that homosexual Ghanaians face criminal penalties and sometimes abuse rising to the level of torture, he also found that Awuku had ‘failed to show that he would be identified as a bisexual or homosexual if he were returned to Ghana’ or that ‘he would in fact engage in homosexual activity in Ghana.’ But, the IJ found, even if one or both of those situations were extant post-removal, ‘the evidence did not support the conclusion that it is more likely than not that [Awuku] would be subject to torture..."

Well, what is the evidence recited by the court about conditions for gay people in Ghana? How about the State Department country report? The court quotes this: "Human rights problems in Ghana include deaths resulting from the excessive use of force by police; vigilante justice; harsh and life-threatening prison conditions; police corruption and impunity ... societal discrimination against women, persons with disabilities, and homosexuals. . . The law criminalizes homosexuality, and lesbians and gays face widespread discrimination, as well as police harassment and extortion attempts. There is a minimum misdemeanor charge for homosexual activity, and homosexual men in prison often were subjected to sexual and other physical abuse."

The court also noted a 2008 N.Y. Times article documenting that "anti-gay hysteria has been sweeping across swaths of Africa, fueled by sensationalist media reports" and specifically naming Ghana as one of the countries affected. The court also noted a United Nations report that "is replete with examples of Ghanians, and in one case an Austrian national, who were either criminally prosecuted for engaging in homosexual conduct, or who were physically assaulted by non-governmental actors because of their sexual orientation."

But evidently this court is affected by the rather narrow and peculiar definition of torture that was embraced by the Bush Administration during the past decade, concluding: "This evidence, while unsettling, is ultimately insufficient under the CAT and this Court’s case law. The record at best establishes the possibility that Awuku will suffer societal discrimination and abuse, criminal penalties, maltreatment in prison, and harassment and extortion from government officials, should he be identified as a homosexual. The record, however, fails to demonstrate that it is ‘more likely than not’ that Awuku will be tortured because of his sexual orientation or, more importantly, that any torturous acts will be ‘inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

And so Awuku, who actually was deported in March 2009 because the court had denied his motion for a stay while his case was pending, was denied relief under the CAT in this decision. As in the case of Mark, Awuku was representing himself pro se.

The Hurt Locker - An Important Film

I posted a comment on this a few hours ago but it seems to have disappeared, so I'll do an abbreviated one again.  I saw The Hurt Locker this afternoon and thought it was brilliant.  The filmmaker has attempted to give us some sense of what it is like to be serving on a bomb demolition squad for the US Army in Iraq, circa 2004.  There is a strong sense of realism, great dramatic tension, and also quite a bit of humor.  The relationships of the three men on the demolition team at the center of the film are explored in some depth, and the actors involved -- none of whom I've previously encountered -- were all terrific, especially Jeremy Renner, who plays the central character and is a real scene-stealer.  I recommend this very highly.  I think all of us in the U.S. need to have some sense of what our troops are going through in the Middle East, and although a non-documentary movie is undoubtedly somewhat sanitized, I did get a strong feeling of truth from this film.

Additional shout-out - Director Kathryn Bigelow does an awesome job of pacing Mark Boal's fantastic screenplay.  Main supporting performances from Anthony Mackie and Brian Geraghty are superb.

Let's take progress where we can get it - Delaware moving to the gay rights column

It may be just a blip on the radar screen in light of the ongoing battles to enact same-sex marriage in the big states (New York, California, New Jersey), but every little bit counts.  On Wednesday night, the Delaware legislature finished up work on approving a gay rights bill, according to a report in this morning's BNA Daily Labor Report.  The measure passed the House 26-14 and, on Wednesday night, the Senate 14-5, and was sent on to Governor Jack Markell, a Democrat.  I couldn't find any info on-line about Markell saying whether he would sign it, but I did find a news story from 2007, when Markell was State Treasurer, reporting on his testifying in favor of a pending gay rights bill at that time, so I think it's likely that he remains a supporter.

The bill does NOT include gender identity, just sexual orientation, and in that sense is a retrogression, since most recently adopted gay rights measures have also included gender identity.  There is a big exclusion for religious and religiously-affiliated organizations, but an exception to the exception - that is, the measure does apply to their employment of people in jobs that generated taxable business income.  So, for example, a church that invests in a bowling alley; the bowling alley would not be exempt from the law, just because it is owned by a church, if the income from the bowling alley is "unrelated business income" (unrelated, that is, to the church's purely religious activities).

There is also a provision stating that the law does NOT require employers to provide benefits to unmarried partners of their employees.

With those caveats, however, it is a full-service sexual orientation anti-discrimination measure, extending to employment, housing, public accommodations, etc.  And the legislature rejected various symbolic amendments proffered by the right-wingers that would have loaded it up with nonsense about what school teachers can say and reaffirmations of support for traditional marriage.

Good for Delaware.  I hope the governor signs it promptly, in time for this weekend's 40th Anniversary of Stonewall celebrations.

The High Line - Manhattan's Newest Park

On my way home from the Law School, this afternoon, I took a detour in the West Village in order to experience The High Line, Manhattan newest park.  And this is, quite literally, a park.  The structure is under the ownership of the New York City Parks & Recreation Department, although it is being directly constructed and maintained by a specially-formed non-profit corporation.  The first section, stretching from Gansevoort Street in the West Village up to West 20th Street, Chelsea, has just been open a few weeks, and I was eager to see for myself what all the excitement is about.

The excitement is justified.  This is a terrific amenity, a brilliant addition to Manhattan's distinguished collection of public places.  The High Line is an old elevated railroad track that used to run down the far West Side from midtown deep into Greenwich Village.  The trains were strictly freight, making deliveries from goods that came across the Hudson River to the midtown docks.  Given its utilitarian purpose, the High Line actually ran through some warehouse type buildings, and some buildings were constructed around it.  As trucks replaced trains as delivery mechanisms in Manhattan, its use decline until trains stopped running entirely several decades ago and it was abandoned and fell into disrepair.  Some sections down in the Village were dismantled to make way for development of the far West Village, but preservationists got their act together and stopped further dismantling.  Then some visionairies proposed turning it into an elevated park for a neighborhood that doesn't exactly have a surplus of park and recreation land, and with help from many generous donors and some government money, they have begun to turn their dream to reality.

This first completed section is a marvel.  Beautiful plantings, conveniently placed benches, a little amphitheatre constructed in a boxy bend of the bridge, conveniently placed access steps (and an elevator at 16th & 10th Avenue for those who need assistance to get up there), marvelous views of the Hudson River and the industrial landscape of the far West Side.... even at just about ten blocks for now, it is an absorbing adventure to walk it.  And, unlike the foot traffic on the street, up here almost everybody seems relaxed, smiling, basking in the quietude of no cars.  I can see this becoming a favorite hangout for some, a place to sunbathe, a place to contemplate, a place to meet friends...  I think this is going to be a big hit with natives and tourists alike.  And I can't wait for the rest of it to be completed.  Everybody, donate!

The best place to access the High Line is at either end, Gansevoort Street or West 20th Street.  Each end is a bit inconvenient to the subways - a bit of a hike - but worth the effort.  Open hours during the summer are 7 am to 10 pm.  I was there around 6 pm and there was a nice crowd without it being oppressively crowded.  I imagine it is truly spectacular after dark!  And it will probably be thronged for the 4th of July....

Indiana Appeals Court Rules for Lesbian Mom on Grandparent Visitation Claim

A unanimous three-judge panel of the Court of Appeals of Indiana ruled on June 23 in Matter of Visitation of C.LH., 2009 Westlaw 1765688, that a trial judge, Hendricks Superior Court Judge Karen M. Love, abused her discretion in ordering that the homophobic grandparents of a lesbian mother be given ten hours a month of visitation with their young grandson. Judge Edward W. Najam, Jr., wrote the opinion for the Court of Appeals. The opinion identifies all parties by their initials.

B.L.H. gave birth as a single mother in October 2001. She had a difficult pregnancy and was living with her parents at the time. She continued to live with them for several years, and they played the primary caregiver role with her son, C.L.H., until mid-2007, by which time she had established her own household. Early in 2007, B.L.H. met K.W. and they began dating. Soon K.W. had quit her job, moved in with B.L.H., and taken over the primary caregiver role for the child. B.L.H.’s job required a fair amount of travel.

B.L.H.’s parents were not happy about this development. Her mother considers homosexuality to be a sin, and when she suffered a stroke shortly after learning about K.W., B.L.H.’s father attributed the stroke to shock about her daughter’s homosexuality and lesbian partner. B.L.H. tried to maintain some sort of relationship with her parents and allow them to see the child from time to time, but their active hostility to K.W. and desire to exclude K.W. from contact with them proved a problem.

Things came to a head around Christmas time of 2007, when the grandparents thought they had a commitment from B.L.H. to bring the child to visit them and receive his Christmas presents. When B.L.H. and the child did not show up, the grandparents went to B.L.H.’s house around 9 p.m. and demanded to see the child, who had already been put to bed. When B.L.H. refused to wake the child to see the grandparents, grandfather became "very angry," told B.L.H. she should never again set foot on their property, and seemed to threaten her "if anything were to ever happen" to the child.

After this, B.L.H. cut off contact with the grandparents. After several months of no contact, they filed suit under the state’s Grandparent’s Visitation Act, seeking court-ordered visitation. They requested a visitation schedule that would be more characteristic of a non-custodial parent than grandparents, including several contacts and some sleepovers each month, as well as several weeks in the summer. B.L.H. formally opposed the lawsuit, but indicated that she might be amenable to working out some kind of visitation scheme informally.

Judge Love appointed a Guardian Ad Litem, who interviewed all parties and submitted a report to the court indicating that B.L.H. is a fit parent, that K.W. was providing good care to the child, who was well-adjusted and doing well in school, and that the visitation schedule sought by the grandparents was not "realistic." The Guardian Ad Litem concluded, "Mother is a fit parent and appears to be making decisions based on what she believes to be in [C.L.H.’s] best interests. She has reasons for denying Grandparents visitation with [C.L.H.] which are valid given the interactions between the family members over the last year or so."

Nonetheless, Judge Love determined to award substantial visitation time to the Grandparents, premised largely on their significant role as primary caregivers during the child’s preschool years, and the likelihood that they would provide the only link for the child with their extended family, since B.L.H. had cut off contact with her sister and other relatives. Judge Love had noted that the child had become best friends with a cousin who was around his age, but that this contact had also ceased.

Judge Love found that it would be in the best interests of the child to maintain contact with the grandparents, order ten hours of visitation a month, while opining, "What would be ideal for [C.L.H.] would be for Grandparents to find a way to accept Mother’s homosexuality, to welcome [K.W.] as part of Mother and [C.L.H.’s] family and to understand that, while they filled an extremely important role in [C.L.H.’s] life from birth through pre-school, they are not his parents and do not have the status of parents nor the right to make demands upon Mother. Further, it would be ideal for [C.L.H.] if Mother could find a way to forgive her parents for their negative response to her homosexuality and her choice of partner, to see from their perspective their understandable hurt after being pushed out of [C.L.H.’s] life and Mother’s life, and to find a way to give [C.L.H.] the gift of not only a loving immediate family, but also a loving extended family."

Judge Najam found the most significant flaw in Judge Love’s ruling was the failure to give appropriate weight to B.L.H.’s constitutional rights as a parent. If a legal parent is fit, then there is a strong presumption, enforced by substantial federal due process rulings, that her decisions about the raising of her child, including with whom the child associates, are binding and take priority over the desires of third parties. He noted that in prior rulings, the court had observed that the Grandparent’s Visitation Act contemplated "occasional, temporary visitation as found to be in the best interest of the child," and that "the Grandparent’s Visitation Act carves out a narrow statutory exception to the otherwise sacrosanct parental authority in a child’s upbringing."

Yet Judge Love’s award of ten hours visitation per month, in the face of discord between the mother and the grandparents that was largely instigated by the grandparents, failed to comport with this narrow approach. "The ultimate question is whether visitation in the face of family discord is in the child’s best interest," wrote Judge Najam. "Here, the trial court’s visitation order is not supported by its findings or the undisputed evidence. The record reveals a significant level of discord between Grandparents and Mother due to Mother’s relationship with K.W. and K.W.’s relationship with C.L.H. The trial court found that the parties ‘hurt’ one another, but the court’s order does not indicate that it considered the totality of the circumstances in determining the best interests of C.L.H."

Najam pointed out that the Guardian ad litem had found the B.L.H. had "valid" reasons for denying visitation to her parents. "While a trial court is not required to accept a parent’s reasons for denying visitation with grandparents as necessarily true, here, the undisputed evidence shows that Mother is a reasonable person and has a rational basis for the decision, which she did not come to easily," wrote Najam. "The trial court did not make any finding regarding the validity or reasonableness of Mother’s decision."

After noting that B.L.H. tried to maintain some relationship with her parents despite their disapproval of her sexual orientation and her partner, and that she gave up on this "after she felt physically threatened by Grandfather" at Christmas time in 2007, Najam asserted that the grandparents "did not have clean hands when they filed their petition for visitation. Confrontations initiated by Grandparents created unnecessary conflict and stress within the family. While they are entitled to their opinions concerning Mother’s relationship with K.W., Grandparents’ open hostility toward Mother created an unhealthy environment for C.L.H. In time, when civility is restored, Mother and Grandparents may reach a private reconciliation which enables Grandparents to visit with C.L.H., but under the circumstances Grandparents have failed to show that it is in the best interests of C.L.H. for the State to intervene and compel visitation against the well-founded concerns of Mother, who is a fit parent."

Kathleen M. Sweeney and Robert A. Schembs of Indianapolis represented B.L.H. on the appeal. Surprisingly, in light of their having instituted the lawsuit, the grandparents did not respond to the appeal to protect their victory in the trial court, leaving the court to make its ruling based on the trial record and the arguments of B.L.H.’s attorneys.

Missouri Appeals Court Rejects Lesbian Co-Parent Custody and Child Support Claims

A three-judge panel of the Missouri Court of Appeals, Western District, ruled on June 23 that a lesbian co-parent’s attempt to establish legal ties with the child born to her former partner could not be entertained on the merits under Missouri’s archaic family law, and that she also could not seek financial support from her former partner for the child whom she bore during their relationship. The court noted but never mentioned any significance of the fact that both children were conceived with sperm from the same anonymous donor, and thus they are biologically half-siblings.

The ruling in White v. White, 2009 Westlaw 1748551, drew a partial dissent from one member of the panel, who thought that the child support action should have been allowed under an estoppel theory.

The two mothers, Leslea Diane White and Elizabeth Michelle Crowe, were partners for about eight years beginning in 1997, according to the opinion for the court by Judge Joseph M. Ellis. They agreed to have children and raise them together as one family. Michelle, who had changed her surname to White during the relationship, bore C.E.W. in December, 2001. Then Leslea bore Z.A.W. in July 2004. The mothers’ relationship terminated in November 2005.

"For the next several months," write Judge Ellis, "the children lived part of the time with Leslea and part of the time with Michelle," but in May 2005 Michelle decided to cut off any contact between Leslie or Z.A.W. and C.E.W. Thus, the half-siblings were denied further contact, and Leslie was denied further contact with C.E.W., a child with whom she bonded as a parent over a period of more than three years. "It appears that neither the children nor the women have had any contact with each other since that date," observed Ellis.

The following January, Leslea sued in Boone County Circuit Court, both on her own behalf and on behalf of both children, seeking a declaration that the two women are both parents of both children. She asked the court to award joint legal and physical custody and to order both women to pay reasonable child support for the expenses of raising both children. Michelle filed a motion to dismiss the case, claiming that Leslea lacking standing to assert these legal claims and that the Missouri Uniform Parentage Act, which Michelle argued was the exclusive vehicle for determining issues of parentage in the state, provided no legal basis for Leslea’s claims. Leslea relied on a construction of the Uniform Parentage Act that has been adopted in some other states, as well as various common law and equitable theories.

The Boone County Family Court Commissioner rejected Michelle’s motion, but on appeal Circuit Court Judge Gary G. Augustine reversed this decision and dismissed the case. Leslea appealed to the Court of Appeals.

The court rejected Michelle’s argument that the Missouri Uniform Parentage Act provides the only mechanism for determining parental status in Missouri, but otherwise ruled against Leslea on all counts.

First, the court found that the Act itself could not be construed to authorize a declaration of maternity under these circumstances. Although the Act does provide that its terms should be construed in a gender-neutral way, the court rejected the argument that this meant that a woman could seek a declaration of maternity at the same time as the identity of a child’s biological mother was already known and established. The court found that the provision for establishing parental identity was to serve to affirm biological relationships, and since Leslea is not claiming to be biologically related to C.E.W., she cannot use the statute for that purpose.

Turning to non-statutory arguments, the court rejected all the common law and equitable theories that Leslea had raised. It found that Missouri courts had not accepted such theories as "de facto parent" or "in loco parentis" as a basis for establishing legal parenting rights, and that old cases on which Leslea had relied concerning stepparents were no longer valid as precedents because the legislature had enacted specific provisions dealing with stepparents that displace old common law rules.

The court also rejected Leslea’s attempt to use the theory of equitable estoppel, under which courts may preclude a party from denying particular facts on equitable grounds, finding that this legal theory had been embraced by Missouri courts only in a defensive posture, not as an affirmative theory to establish standing in a custody or visitation dispute.

Finally, the court rejected Leslea’s argument that this case presented "exceptional circumstances" that would justify allowing a "third party" to seek custody even though a child’s biological parent had not been deemed "unfit." "Neither our statutes nor our case law remotely suggest that any third party that comes along has standing to bring an action seeking custody of children," wrote Ellis. This was an offensively gratuitous statement, in light of the uncontested facts that the women were in a long-term relationship when the children were conceived and Leslea was not just "any third party that comes along," but acted as a mother towards both children from their respective births until Michelle cut off her contact with C.E.W.

"Leslea has not cited, nor has our independent research revealed, any case involving third party custody that did not involve intervention in pending litigation by third parties or the third parties being named as parties in the initial custody case," wrote Ellis, finding that prior use of the "exceptional circumstances" doctrine had occurred in cases where a third party had been drawn into the litigation surrounding dissolution of a legal marriage. The court refused to draw analogies to this case.

Leslea had also argued on appeal that there was some contractual basis for her claim that the two women should be held obligated for child support for both children, but the court noted that she had not raised this claim in her original petition and argument before the trial court, so it was waived before the court of appeals. Leslea additionally raised various constitutional claims, none of which impressed the court, which rejected the argument that her right to due process or equal protection of the law was violated by denying her standing to bring this case. The court totally skirted the argument that the children themselves might have rights to maintain contact with both of their parents or with each other, for that matter, merely noting that the parenting statute does not authorize a child to seek to establish parental ties with a third party.

Judge Alok Ahuja joined with the other judges on every point except the estoppel claim, arguing that the facts alleged by Leslea could provide the basis of a claim under the contract-related doctrine of "promissory estoppel," which authorizes legal relief for somebody who has relied on an express promise and changed his or her position in such reliance. In this case, Leslea alleged that the women had both become pregnant and bore children in reliance on mutual promises that the children would be raised jointly and supported by both women. While Judge Ahuja agreed with the majority of the court that this theory could not be used to establish standing to seek custody or visitation, the judge contended that Leslea’s claim concerning child support might be established under this theory.

Lambda Legal Senior Staff Attorney Susan Sommer represents Leslea White and the children, and is preparing papers to seek permission to appeal to the Missouri Supreme Court.

Employment Non-Discrimination Act introduced in the House of Representatives

Lead sponsor Barney Frank has introduced the new version of the Employment Non-Discrimination Act in the House of Representatives.  It is numbered HR 2981.  Ten co-sponsors are listed.  Anybody who wants a copy of the bill and doesn't want to search for it on-line, feel free to email me at arthur.leonard@nyls.edu and I'll shoot out the pdf file to you.

From a cursory examination, it appears to me that this is very much the minimalist employment discrimination bill we've been seeing more or less the same since 1993, the big difference being the inclusion of gender identity together with sexual orientation as prohibited grounds for discrimination.  The bill would outlaw disparate treatment on those bases, expressly eschewing any coverage for disparate impact cases.  Special provisions have been included dealing with issues such as restroom usage and dress requirements.  Employers are required to provide adequate restroom facilities for all employees, but not necessarily to allow preoperative transgendered individuals to use the restroom of their choice.  On the other hand, the bill states that it does not impose requirements on employers to construct new facilities.  It also eschews any affirmative action or quotas, and avoids the employee benefits issue by incorporating by reference the Defense of Marriage Act.

This minimalist approach dates from 1993, when the furious debates over the military policy -- which included many members of Congress stating that they opposed sexual orientation discrimination in the workplace, but were opposed to allowing openly gay people to serve in the military -- inspired a drastic revision of prior gay rights bills to focus narrowly on workplace disparate treatment in order to come up with a bill that might catch the votes of such individuals and their fellow-travelers.  In so doing, the bar for a national "gay rights" bill was drastically lowered, as prior bills had covered the full gamut of civil rights (workplace, housing, public accommodations, government services) and had extended to disparate impact as well as disparate treatment cases.  A bill along those lines suffered a narrow defeat in the Senate in 1996 when presented as part of a deal to bring the Defense of Marriage Act to a vote in that chamber without amendments. 

There is some question in my mind whether the bar having been lowered in 1993 in an unsuccessful attempt to capitalize on the potential support signalled by statements during the DADT debate, it was a good idea to keep the bar lowered in that fashion.  On the other hand, there is a pragmatic argument to be made that one is most likely to make progress by making incremental steps, and the current version of ENDA is more likely to win enactment than a broader bill.  It can provide the basis for future amendments to extend protection further, a step at a time.   Lead sponsor Barney Frank is a consummate legislative strategist and practitioner of the art of the achievable, so any complaints we might have about this bill -- such as the incorporation of DOMA to avoid the issue of employee benefits for same-sex couples -- should be weighed against the likelihood that including benefits in this bill instead of a stand-alone bill might well sink this one, especially in the midst of a recession when many employers are hurting and are about to be saddled with new financial obligations if the health insurance reform proposals go through.

On balance, HR 2981 is worth supporting.  The major LGBT organizations have issued calls for people to contact their members of Congress urging co-sponsorship.  I was surprised to see my Representative, Jerry Nadler, not listed, so I'll certainly be doing that.  At this writing, I don't know whether a companion bill has been introduced in the Senate....

Plucked Genius - Christina Pluhar

My recent obsession with a Monteverdi recital disc on Virgin Classics, "Teatro d'Amore," focused originally on the work of Philippe Jaroussky, the astonishing male sopranist (sometimes labelled countertenor) who is one of the solo and ensemble singers on that great recording.  But as I listened again and again, and compared the performances to other, more conventional, recordings of this repertory, I came to focus on the work of Christina Pluhar, the director of the instrumental ensemble L'Arpeggiata, whose work is central to the success of the disc.

Pluhar takes a refreshing approach to this repertory, emphasizing its roots in dance rhythms and embracing the opportunity for sonic "color" provided by the old instruments of the period when they are played with vigor and without inhibition.  I decided to explore her work further.  Pluhar and ensemble have produced a series of estimable recordings for the French independent label, Alpha.  Alpha recordings are physical works of art in addition to their musical qualities, presenting very high quality reproductions of period art on their covers, sumptuous packaging (which I must dismantle, alas, to accommodate the large binders in which I house my CD collection), and detailed notes which, unfortunately, are sometimes less than fully informative about the provenance of some of the music, as they tend to speak more generally about the repertory than specifically about every piece on the recording.

But, setting aside these issues of physical presentation, Pluhar's recordings for Alpha have proven to be quite extraordinary.  Some are centered around the work of a particular composer, others around a particular genre.  They are all put together with the utmost imagination, to provide contrasting moods and build their tension with some relaxation towards the end.  They are best heard as a unified program, although individual numbers and favorites can be sampled and repeated with pleasure.

The strong points that I've noted in the Virgin Classics Monteverdi album are all present in the Alpha albums devoted to music of Stefano Landi and Giovanni Kapsberger - marvelously fluid and rhythmically alive instrumental work, full of color and life, and solo singing that combines the communicative sensibility of pop music with a keen appreciation of period style and a willingness to improvise in order to bring contemporary life to ancient verses and melodies.  In other words, Pluhar understands that one of the important functions of music is to ENTERTAIN, at the same time seeking to engage the emotions.  And she understands that period music must be performed with imagination, not the stilted literalism that has too often afflicted the performance of what is usually called "early music".  (Early music is obviously a relative term.  To the young virtuosi of today, Shostakovich might be considered "early music", but the term generally refers to music composed during the Baroque period or earlier.  Monteverdi is late Renaissance-Early Baroque.  Some have sought to extend the early music label into the 19th century by performing music of that time on instruments (or copies of instruments) of that period, such as the "original instruments" Beethoven symphony cycles by such as Norrington, Hogwood, Gardiner....) Trying to come up with a comparison to other performers, the one that comes to mind first is Jordi Savall with his various period instrument ensembles, but Pluhar goes him one better with the spirit of improvisation that hovers over all her work.

Some of the most exciting recordings by Pluhar and her group are those devised thematically rather than by composer, particularly the album devoted to The Tarantella and the marvelous album of dance music called "All' Improvviso."   But then, I think you can't go wrong with any Pluhar recording I've heard so far.  The woman is an absolute genius at putting together the elements of a recorded musical program, and her own work on the harp and the theorbo, used mainly as continuo instruments, is of the highest order.

For information about her work and her group, see www.arpeggiata.com.  There are plenty of Pluhar performance clips on youtube. And do seek out her recordings.

Kansas Supreme Court Reverses HIV Exposure Conviction, Finding Specific Intent Not Proven

The Kansas Supreme Court unanimously reversed the conviction of Robert W. Richardson, II, who is living with HIV infection, for "exposing" two women to a "life-threatening disease," finding that the state had failed to present evidence that Richardson, who admitted having sex with both women, had actually intended to expose them to HIV infection. In his opinion for the court, Justice Lee A. Johnson mentioned that the state had "inexplicably" failed to introduce evidence at trial that could have provided an evidentiary basis for Richardson’s conviction.  State of Kansas v. Richardson, 2009 Westlaw 1705745 (June 19, 2009).

According to Johnson’s opinion, Richardson had known he was infected with HIV for ten years when he had sex with the two women in the fall of 2005. Richardson had been under treatment and enjoying a very low viral load, but a February 2005 test showed an increase in viral load in to the "medium level" of infection, so he was prescribed new medication. At his next viral load test, shortly after the sexual encounters that were the basis for his prosecution, his viral load was so low as to be undetectable.

The opinion does not relate how Richardson’s sexual activities came to the attention of the Lyon County District Attorney’s Office. He was charged in May and June 2006 with two counts of violating a Kansas statute, K.S.A. 21-3435(a)(1), that provides, "It is unlawful for an individual who knows oneself to be infected with a life threatening communicable diseases knowingly to engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening communicable disease."

At the trial before District Judge Jeffry J. Larson, Richardson waived his right to a jury trial and agreed with the prosecutor to stipulate to three facts: that he knew he was infected with HIV, that he engaged in sexual intercourse with the two women on the dates charged, and that "sexual intercourse" under the statute meant "penetration of the female sex organ by the male sex organ."

The only evidence presented at the trial came from Richardson’s doctor, who was testifying as state’s witness, and another doctor called by Richardson. Their testimony mainly addressed the scientific evidence about communicability of HIV when somebody has an undetectable viral load, and Richardson’s doctor was also quizzed about what counseling he had given to Richardson concerning safe sexual activity. It turned out that the doctor’s recollection was fuzzy and his written patient records did not confirm any particular counseling.

Richardson argued that the statute was too vague, failing to define what "expose" means, and also failing to explain the meaning of "life threatening disease." District Judge Larson rejected these arguments, and accepted the state’s contention that based on the stipulated facts Richardson had violated the statute by engaging in sex with the women while knowing he was infected. Richardson had argued that it was not enough for the state to show that he had engaged in sexual intercourse while knowing he was HIV+, but rather that the state had to show that he had the specific intention to expose the women to being infected with HIV. Larson accepted the state’s argument, and convicted Richardson. Justice Johnson’s decision does not mention the length of sentence imposed by Larson.

On appeal, the Supreme Court rejected the state’s interpretation of the statute, agreeing with Richardson that the statute requires the state to show that a defendant had a specific intent to expose his sexual partners to the disease, not just a generalized intent to have sex while knowing he was HIV+. "The State acknowledges that, on its face, K.S.A. 21-3435(a)(1) purports to be a specific intent crime. However, the State does not acknowledge that this State’s appellate courts have consistently interpreted statutes that define a crime by using the phrase ‘with intent to’ as requiring a specific intent element," wrote Johnson. "Instead, without proffering any authority, the State contends that giving effect to the statute’s plain specific intent language would actually thwart the legislature’s intended purpose of preventing the intentional exposure of others to HIV."

In effect, the state argued, since there is always some risk of HIV transmission if an infected person has sex with somebody else (for example, condoms can break), the statute should be construed to require HIV+ people to be celibate. Or, as Justice Johnson summarized the state’s position, "the State suggests that the specific intent to expose another to HIV is inherently included in the defendant’s general intent to engage in sexual intercourse. Under the State’s interpretation, a person infected with HIV must be totally abstinent or risk being prosecuted for a felony each and every time he or she engages in sexual intercourse or sodomy, regardless of whether the act is between two consenting (perhaps married) adults with full knowledge of the virus and utilizing prophylactic measures. We disagree," he stated emphatically.

Johnson insisted that the state had to prove that Richardson had the "specific intent to expose them to HIV." The problem, however, is that proving intent is difficult, since it is virtually impossible to prove what somebody was thinking. The best one can do is to produce circumstantial evidence. The state argued that the court’s interpretation of the statute would make it virtually meaningless, putting the state to an impossible burden of proof, but the court disagreed, finding that the state could meet its burden by showing circumstances from which a reasonable fact-finder could infer the necessary criminal intent.

In this case, Johnson pointed out, ironically, evidence had been presented at the preliminary hearing (but not at trial) that might serve as the basis for drawing such inferences. The court specified three items of such evidence that it considered significant. Neither of the women knew that Richardson was HIV+ when they agreed to have sex with him, he did not use condoms, and he lied to one of the women, telling her that he was free of any sexually-transmitted diseases. The court suggested that had this evidence been presented at trial, there could have been a basis to infer specific intent.

The supreme court agreed with Judge Larson that the statute was not unconstitutionally vague, finding that people of reasonable intelligence could interpret the terms "expose" and "life threatening disease" without further explanation from the legislature. But, interestingly, on its own motion the court suggested that if the state’s interpretation of the statute was correct, it would raise a federal constitutional problem under Lawrence v. Texas (the 2003 U.S. Supreme Court decision striking down the Texas sodomy law), because "a person’s decision to engage in private, consensual sexual conduct is protected by the United States Constitution," and the state would have the court construe the statute to make all sexual activity by HIV+ people a crime, regardless of the degree of risk they would present to their sexual partner.

Richardson was represented on appeal by Lydia Krebs of the Kansas Appellate Defender Office, who managed to persuade the court to issue one of the most rational, and least hysterical, opinions about HIV exposure that we have seen over almost three decades of the AIDS epidemic.

Francis Ford Coppola's "Tetro" - Indy film in limited release

This afternoon I attended what seemed to be a sold-out screening of Francis Ford Coppola's new film, Tetris, at the Landmark Sunshine Cinema on E. Houston Street in Manhattan.  There was a big line of audience members outside as I exited the theater, so I expect this one-theater run is doing quite well and perhaps word of mouth will help to expand this film to more theaters.

It certainly deserves to be seen.  Coppola has written and directed a provocative drama of a dysfunctional family.  I don't want to load my comments up with plot spoilers, as the plot is very important here.  There is a bit of a mystery as young Benny Tetrocini is trying to find out about his past and confronting an older brother, now known at his instance only as "Tetro," who is puzzlingly secretive.  All of this is sorted out in the end, but I'll say not another word about that.

What is most interesting is Coppola's decision to film large parts of this movie in black and white, leaving mainly depictions of theatrical presentations to be in color.  The movie slips back and forth imperceptibly, and it works quite well.  As to the cast, I was not fully convinced by Vincent Gallo's portrayal of "Tetris."  Gallo is an actor whose work I've enjoyed in other productions, but I had a feel that timing was a bit "off" here.  Perhaps it is just that his character is intended to have emotional/mental problems and to have an enormous family secret he is trying to preserve, and so the character is made at times hostile to his inoffensive younger "half-brother," and can by cryptic and obscure.  Maybe my problem is that Gallo is doing such a good job at portraying this psychologically tortured character that he makes me uneasy.

On the other hand, young Alden Ehrenreich is totally loveable as the younger brother.  In a deft bit of age-appropriate casting, Coppola has placed a young film-student into playing the role of a teenager, and Ehrenreich pulls it off quite convincingly.  I was certainly charmed, and I hope his performance in this film gets the recognition that will help him land more roles.  Maridel Verdu as Tetris's kindly and spirited girlfriend is also simply wonderful, and Klaus Maria Brandauer in the brief role of the celebrated composer-conductor whose relationship with his offspring set the plot in motion is very convincing.

This one is definitely worth seeing, and it's a shame it has opened so inconspicuously in one, out of the way theater.  I hope it goes into wider release soon, and eventually becomes available on-line and on DVD.