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A new era of animal welfare advocacy is coming. Oh is it ever coming…

Pun most definitely intended.

That magical day is soon approaching, dear reader(s). They day we have been eagerly awaiting since last summer. The day that will change everything.

I’m talking, of course, about the launch of PETA’s porn site (h/t Ecorazzi).

Right now it’s just a splash page with two possibly-naked models staring at you rather alluringly:

Followed by perhaps the worst pun in the history of porn/animal rights crossovers:

I am still debating if I want any updates from them. I’m quite frankly terrified of anything combining typical adult content with any sort of depiction of animal cruelty. I mean really, wha???


It was fun while it lasted, Dr. Pepper

I learned two things today about what it apparently means to be a man:

1. I should try to cut down on my calories.

2. Diet soft drinks will make my weenie shrivel up, or something like that.

Since our society seems to think that we are waging an epic, daily battle to prove our manly qualities to everyone around us, but prohibits us from walking around pantsless with a tape measure for comparison purposes, we have to be creative in how we spew our testosterone.

From Packaging Digest. Fair use appliesEnter Dr. Pepper TEN (note the very MANLY use of all-caps), which, according to Packaging Digest, promises all of the following:

Designed specifically for men who prefer the full-flavor experience of regular Dr Pepper but want a lower-calorie option without the diet imagery, Dr Pepper TEN will feature a distinctly masculine package design, complete with a gunmetal gray color scheme, industrial rivets and bold new font.

“As one of America’s favorite and oldest soft drinks, Dr Pepper has been a beverage innovator for more than 125 years,” says Dave Fleming, director of marketing for Dr Pepper. “Men told us that they wanted a low-calorie option with the full flavor of regular Dr Pepper—and that’s exactly what we’re delivering with Dr Pepper TEN. I’d say these are the 10 hardest-working calories in the beverage business.”

“Diet imagery”? Gunmetal gray with rivets? “The 10 hardest-working calories”? Do the marketing guys at Dr. Pepper actually know any men?

You know what? Screw this. I don’t like football all that much. In 1998-99, I went to Lilith Fair twice. I cry at the end of Serenity, every single time I watch it. I could give two craps what the rest of America thinks of how I rank on some imaginary scale of manliness. I also like Diet Dr. Pepper, but I’m not so sure I want to drink something so closely associated with a beverage that, regardless of how it actually tastes, has been rendered into swill through the power of marketing.


When skydiving, uh, “tandem,” use caution

Today in really weird news (h/t Lowering the Bar, again):

The Federal Aviation Administration says it will look into a videotaped skydiving sex stunt to determine if the pilot might have been distracted during the incident over Kern County.

Honestly, there ought to be an investigation if it turns out the pilot wasn’t distracted. Wouldn’t that mean they’re doing it wrong?

No, I’m not adding pictures to this post.

Posted with WordPress for BlackBerry.

UPDATE 10/28/2011: The FAA cleared everyone after reviewing some video:

According to video evidence from the stunt FAA spokesman Ian Gregor says the pilot did not appear to be distracted while maintaining their typical piloting role during a skydiving exercise.

Yup, I bet they reviewed the hell out of that video. Since it’s all in the name of safety, I’m cool with it.


Challenge accepted, Mr. Cochran: Thoughts on a poorly-conceived college op-ed about reproductive health

I tend to assume there are multiple sides to every story, i.e. more than just one or even two. For every episode of outrage on the web, there is often an at-least-remotely-plausibly-mundane alternate explanation to the outrage.

That does not seem to be the case with one young Mr. Ben Cochran, a nursing student at East Carolina University.

If there is a counter-narrative to this tale, I have yet to find it. And I looked.

Mr. Cochran had the sniffles. Possibly really bad sniffles. Possibly soul-crushing, mucus-hacking, life-ending-in-an-earlier-era sniffles. So he went to the student health center. And there he experienced the horror of his incurable but not fatal viral infection taking a back seat to the frivolity of women’s reproductive health. So he took to the student paper to complain. Interestingly, the paper apparently first published the “unedited” first draft. I’m not going to bother quoting at length, but just stop reading if you get offended by anatomical terms most of us stopped using in junior high:

What girl have you ever heard of that goes to a doc in the box for birth control? None of them. They go to their gyno. It’s a matter of efficiency. If you have a lung problem, you see a pulmonologist. If you have a heart problem, you see a cardiologist. If you have a cunt problem, you see a gynecologist.

This was subsequently edited as follows:

What girl have you ever heard of that goes to a doc-in-the-box or walk-in clinic for birth control? None of them. They go to their “gyno.” It’s a matter of efficiency, as well as personal safety. If you have a lung problem, you see a pulmonologist. If you have a heart problem, you see a cardiologist. If you have a lady problem, you see pest control or a gynecologist.

The student paper apologized, citing “a staff member’s mistake” as the reason for the original edit surfacing, but also standing by “the publishing of the article due to our firm belief in free expression.”

I wholeheartedly agree that the paper has the absolute right to allow Mr. Cochran a forum to out himself as an entitled, narrow-minded dimwit (IMHO). In fact, if Mr. Cochran is willing to offer evidence of his glaring lack of qualifications for the job of human being so readily, the paper practically has an obligation to publish it.

Clearly he lacks a basic understanding of female anatomy, female sexual autonomy, and the many health benefits of birth control for women above and beyond the ability to bone with wild abandon. He also raises certain questions as to his qualifications to serve in the nursing profession (a female-dominated profession, one might add), although he is still in school, so there’s time. I was going to just let it go, figuring haters gotta hate, but then I noticed this:

If you insist, sir.

This is an educational opportunity for Ben Cochran. The internet is a big place. But it remembers. It remembers everything.

I decided to write about this because just yesterday I read an article entitled “When it comes to online reputation, ‘life’s not fair, and companies aren’t either’” about companies that perform detailed online searches for companies reviewing job applicants. It cited an earlier Gizmodo article about a company called Social Intelligence, which screens the following for prospective employers: “aggressive or violent acts or assertions, unlawful activity, discriminatory activity (for example, making racist statements), and sexually explicit activity.”

I view this as a public service to the nursing profession and, in the shorter term, the students of East Carolina University. Ben Cochran is a nursing student at East Carolina University who thinks that the convenience of male cold sufferers trumps the reproductive health of female college students, and who might not know the difference between Pabst Blue Ribbon and a pap smear. The Google search algorithms are going to love him.

On the plus side, The East Carolinian had this poll up at 11 a.m. CDT on October 3, 2011, favoring the availability of birth control on campus 99 to 1.

For a final chuckle, observe this exchange:


Great moments in animation, with bunnies!

This is a song by Australian band TISM. It has at least one instance of a NSFW lyric, but the awesome ought to make up for that.

Yes, I know this really has nothing to do with law. But lawyers need to have fun, and are often no strangers to sexual frustration.


Oh PETA, PETA, PETA. What are we going to do with you???

Today is a great day for my blog. A day many bloggers can only dream of.

Today I get to write about porn.

Most bloggers wait in vain for some legitimate reason to blog about porn. Well, bloggers who aren’t named Marc Randazza or Michael Fattorosi, anyway. This week, I found such a legitimate reason. (I should probably mention the NSFW status of this post. Proceed with caution.)

But first, I have to talk about PETA.

I have conflicted views on PETA. On the plus side, they have done some excellent work investigating cases of animal cruelty.

On the minus side, they have a very bad track record on many issues of animal rescue.

  • This rather snarky infographic (h/t BigMikeInAustin) shows some stats on their rescue efforts and the activities of their spokespeople.
  • PETA advocated for Michael Vick’s dogs to be put down.

    Norfolk-based People for the Ethical Treatment of Animals cautioned that people may seek to adopt the dogs for the wrong reasons, such as boasting of having a “Michael Vick dog” or returning the animals to the dogfighting pits.

    “In most cases, pit bulls seized from dogfighting rings are euthanized, and as sad as that is to all of us, it may be the best thing to do for everyone concerned,” PETA spokesman Dan Shannon said.

    Note that the concern is over what may happen to the dogs if they live. Also note that nearly all of the dogs were rehabilitated and successfully placed in adoptive homes.

  • PETA has not been much of a friend to pit bulls at all. This puts them at odds with me.
  • A PETA “sheltering adviser” offered a remarkably weak, alternative-solution-free criticism of Austin’s no-kill policies recently.

They also make widespread use of nudity in their ad campaigns and protests. I am torn as to whether this goes in the “plus” or “minus” side, as I feel it distracts attention from the important issue but at the same time features naked people.

From Fair use applies.  From Fair use applies.

From Fair use applies.

This brings me to the point of this post, where things get good: PETA plans to launch a porn site using the “.xxx” domain.

No, really.

I’m serious. And it sounds delightful:

The bizarre site will aim to raise awareness of veganism by offering pornographic material alongside graphic footage of animal mistreatment.

The porn site will illustrate the horror of life for animals on factory farms, will pictures and video shot undercover by the group’s hidden camera investigations.

Spokesman Lindsay Rajt told the Huffington Post: ‘It will have enough adult content to qualify for the XXX domain site but also some other graphic images of animals that viewers may not expect to see.‘We live in a 24 hour news cycle world and we learn the racy things we do are sometimes the most effective way that we can reach particular individuals.

She added: ‘We really want to grab people’s attention, get them talking and to question the status quo and ultimately take action, because the best way we can help the greatest number of animals is simply by not eating them.’

“Adult content” combined with “graphic images of animals”??? Does PETA, ummmm, know what porn is for??? I mean really, how often do you want to see “graphic images of animals”? Probably not very often. Now think of the absolute last time you would want to see that sort of “graphic” image. You probably thought of a time when you were eating. Now think of what might come in second. You see where I’m going with this.

I fail to see how this could succeed either as effective advocacy or as pornography. There is such a thing as too much controversy. People who aren’t already repulsed by PETA’s antics might finally be repulsed. People looking for new adult entertainment might be in for a rude surprise. Aside from joke fodder, I don’t see much good coming from this.


Harassment and ugliness

Classy legal argument of the week: a female employee of a real estate firm claiming sexual harassment could not have been harassed, because she is ugly (h/t Trippe Fried):

A 23-year-old lesbian says the Brooklyn real estate office she once worked in is a den of deviants where raunchy sexcapades were the norm.

But the bosses she’s suing say she’s too ugly to harass.

Priscilla Agosto ran a gauntlet of sexual humilition – verbal and physical – in her 14 miserable months at People’s Choice Realty, her suit against its three bosses says.

No less than seven male employees made lewd advances at her – even after she complained to the bosses, she said in papers filed in Brooklyn Supreme Court.

Her male co-workers exposed themselves, rubbed up against her and even asked for oral sex, she alleges.

And they even offered $500 to watch her have sex with her girlfriend, she said.

“I hope and pray that by sharing my story, anyone who finds themselves in a similar situation will have the courage to speak up,” said Agosto.

Odelia Berlianshik, the owner of the Williamsburg firm, denied the charges – and launched a shocking attack on Agosto’s appearance.

“Who would touch her? She’s an ugly girl anyway,” she said of the former secretary. “She made up a story because she didn’t want to work.”

As defense arguments go, it’s not the worst one ever. It’s close, though. It does not appear that an lawyer made these arguments on behalf of the employer. This is just the owner spouting off a defense.
Photo by Stephen Pierzchala

I'll see your ugly and raise you Sam (Photo by Stephen Pierzchala, used under a Creative Commons license)

The prevailing theory of defense in a sexual harassment case is to go on the offensive and attack the plaintiff/accuser’s character in one way or another: the plaintiff is crazy, over-emotional, slutty, mean, and so on. At the same time, I imagine it would be difficult to defend such accusations without turning it back on the accuser in some way. The only other way to defend the case would be to challenge the specific circumstances of the alleged incidents of harassment or demonstrate the good character of the accused. The burden of proof is on the plaintiff, though, so it is not necessarily the responsibility of the defendant to disprove the allegations, but rather to show that it is more likely than not that it did not happen the way the plaintiff says it did. Demonstrating reasons why the plaintiff is wrong (i.e. somehow bad), as opposed to why the defendant is right (i.e. good), is more likely to resonate with the finder of fact in a case (a judge or jury). Plus, it’s probably easier to do. The accusers puts her/himself out there for scrutiny by bringing a suit. Right or wrong (I go with wrong), it is easier to attack the character and narrative that has already been put out than to offer a completely new one by focusing on the defendant.
That of course, is a technical and legalistic way of explaining a rather jackass-ish argument in the case described above. There must be better arguments against her allegations than that.

In a civilized society, people should not have to be told not to do this

Soooooooo…..interesting news on Above the Law this week. I’m not entirely sure why I feel compelled to comment on this. I do like a little controversy now and then, though, so here goes. Seems there have been two–yes, two–legal matters recently relating to men surreptitiously making, uh, DNA deposits intended for consumption by unwitting women. Two hardly makes for a national trend, but still, ew.

If you are easily offended or have recently eaten, you should probably just stop reading now.

Also, this is a family-friendly blog (okay, not really), so I reserve the right to redact quotes and use euphemisms instead of medically-correct terms.

In a California case, an employee of Northwestern Mutual Investment Services complained of  Michael Kevin Lallana after she inadvertently ingested his, uh, you know, which he intentionally put into her water bottle at work. He was charged with and convicted of two counts of misdemeanor battery. Why two counts? Because he did it twice. She figured out what was amiss the second time, and the story of how she did that goes on another blog.

The judge ordered him to pay restitution for “for loss of wages, therapy and medical expenses, including the money she paid to have the tainted water tested” to the tune of $27,410.80. It begs the question of why he did it. For starters, he pleaded not guilty and claimed he did not know such behavior would be frowned upon by his employer or by the law. His statement, in what may be the greatest evidence of the sexual dysfunction of our society, was that “her lips had touched it…It was the closest I could ever get to someone as good looking as that without tampering with my marriage or hurting anyone.” Again, ew.

Setting aside the implicit insult to his wife, his lack of understanding of what it means to “hurt” someone, and any particular opinion of the good-lookingness of his victim, it’s worth noting that, at $13,705.40 per “contribution,” he could have found a less expensive way to find an attractive woman (but then he probably knows that that would be illegal, and might hurt someone.)

If you’re too grossed out to continue, here is an escape route to Nyan Cat.

I will now continue writing this post with the Nyan Cat song playing in the background. I can’t guarantee my sanity.

Moving on to New York, a woman has sued Planet Sushi for “physiological and psychological injuries” after eating some sushi with, uh, you know where this is going.

The case just survived a motion to dismiss filed by the restaurant’s attorneys, arguing spoliation of evidence (apparently the incident occurred in 2008, lab testing to confirm, uh, you know, was inconclusive, and the samples were not retained.)

This case may be more difficult than the California case, particularly without clear lab results and no remaining samples. The question will come up as to what formed the basis for plaintiff’s suspicions, and that question will lead to all sorts of sophomoric places (i.e. how did she know what she was tasting so quickly?) There is also no specific tortfeasor here, and no specific motive like the ridiculous creepy one offered by the guy in California. This will not be a proud moment in American jurisprudence. Entertaining, perhaps, but definitely not proud.

I’m not sure if I will post on this again. I’m also not sure I’ll ever eat sushi again.

The Nyan Cat song was playing for 27 minutes, 18 seconds as I wrote this. I’m off to wash my ears now.


Is alimony sexist?

Photo by Stephen Coles

Photo by Stephen Coles

A client once came to my office in a panic. He wanted a divorce, and he wanted one as soon as possible. It turned out that he and his spouse had separated years earlier, and that after the separation she had settled in California while he had moved around the country. He had lived in Texas for a few years at the time. There were all sorts of jurisdictional and venue issues, as it was not at all clear where the two of them had last cohabited as husband and wife. The issue for him, though, was that he wanted the divorce granted in Texas, because she wanted a divorce in California and she wanted alimony.

It struck me as odd that, after years of living apart with little to no contact, she might be able to claim alimony under California law. My understanding of alimony is that it is intended to help one spouse get on their feet after years of being supported by the other spouse. It was possible, though, that this person could be stuck with an alimony bill from someone who had been supporting herself in a different state for the better part of a decade. Is that fair to him? Also, is that fair to her? Because to award alimony to her would be to assume that, despite her years of presumed self-sufficiency, she really still needs the support of her husband. I realize she may not have seen it that way, and that as the attorney for the husband, I am not the best person to argue for her interests. Still, it troubles me that this could happen.

Alimony was recently in the news in the Arnold Schwarzenegger/Maria Shriver divorce, with the rumor mill buzzing about Arnold initially refusing to pay what was described as “alimony,” then changing his mind. This sounds to me more like a $400 million property division between two absurdly wealthy people, but the word “alimony” is being used extensively. Another way to look at it, at least hypothetically, is some form of compensation to Shriver for her husband’s infidelity. It does not make for much of an object lesson on alimony for anybody else, unfortunately.

Texas has generally held alimony to be against the state’s public policy, but has allowed for “spousal maintenance” in the event that:

  1. The parties have been married more than ten years, and one spouse either (a) has significantly lower earning capacity and cannot meet basic needs, (b) has an incapacitating physical or mental condition, or (c) has custody of a child requiring substantial care due to an incapacitating physical or mental condition; or
  2. One spouse has a conviction or deferral of adjudication for  criminal offense involving family violence.

The two rationales for spousal maintenance in Texas would be either to support a spouse who cannot support themselves or needs extra support for a child at the time of the divorce, or to compensate a spouse for abuse during the marriage. Unless the spouse requesting maintenance can prove an ongoing disability, spousal maintenance in Texas cannot be ordered for a period exceeding three years.

California provides a long list of criteria for determining alimony or spousal support, and it appears to have the same overall rationales as Texas. Some states, such as Massachusetts, have broader criteria, but are considering scaling back. There is a movement afoot to reform so-called “permanent alimony” in favor of a system ostensibly like Texas’, which allows the payee spouse time to get on their feet, but only so much time.

So my question is this: is a system that compels one spouse to pay for the support of the other spouse after divorce for the rest of that spouse’s life in any way sexist? While the history of alimony is undoubtedly one of men paying it to women, that is not always the case anymore. As women comprise roughly half the workforce, it is not uncommon anymore for a wife to be the breadwinner of the family and to find herself owing alimony after a divorce. And women are apparently not at all happy about this:

The idea that men can receive spousal support from their wives may feel like a freakish concept, but as women have become higher earners, it’s increasingly common.

And as men set their sights on women’s earnings, women have become more protective of those dollars. In fact, according to the American Academy of Matrimonial Lawyers, 44% of attorneys included in a recent survey said they’ve seen an increase in women asking for prenuptial agreements over the last five years, where in previous decades, prenuptial agreements were almost always sought by men.

A lot of women are indignant now that the shoe is increasingly on the other foot, says Carol Ann Wilson, a certified financial divorce practitioner in Boulder, Colo. “There’s this sense of, ‘What’s yours is ours, but what’s mine is mine,’” Wilson says. “My first response to that is, ‘All these years we have been looking for equality; well, this is what it looks like.’ I think women get angrier about having to pay than men do.”

Why does an ex-wife paying alimony “feel like a freakish concept”? Because no one expects a woman to be more successful than a man–the concept of men always being the ones to pay alimony is a cultural artifact from the era of working husbands and housewives. While there are undoubtedly many cases where spousal maintenance is appropriate, e.g. a highly-paid professional married to a stay-at-home parent with a high school diploma, or an incapacitated spouse dependent on the other spouse who is the respondent in a divorce case. See also victims of domestic violence who should be entitled to some form of compensation. The statutes themselves make no mention of gender at all. Still, we assume that men are the ones to pay alimony, and it seems odd for a woman to be ordered to pay. These assumptions can harm men by forcing them to make payments long after they seem necessary or fair. They also harm women by perpetuating the false notion that women ultimately cannot take care of themselves and need a partner. Many alimony laws provide for termination of alimony payments once the recipient remarries or cohabitates with someone, since presumably now there is a new person to support the recipient. While payment of alimony may be becoming more “equal” in the sense that more women are being ordered to pay it t0 men, the whole system is still based on a rotten foundation of old-timey sexism towards women.

There are two ways to bring equality among the genders in this system. One is to start making more women pay alimony, thus spreading the misery as evenly as possible. The other is to reform the laws to limit alimony to situations where a spouse truly cannot support her/himself without support, and conditioning that support on the recipient making reasonable efforts to become self-supporting with a reasonable time limit on alimony appropriate to the specific situation. Of course, that requires thoughtful, nuanced consideration of each individual case by attorneys, mediators, judges, and spouses. Will the pain of staying in our current system of bellyaching lead us to a better, fairer solution?

Okay, that last bit was a rhetorical question.


Sexy pics online = custody trouble

Photo by radioher

Yeah, like I was going to post one of the photos from the case (photo by radioher)

Here’s an interesting case that was discussed at the Family Law CLE last week. In In re: J.A.S., a case in the Texas 11th District Court of Appeals, a mother appealed the trial court’s ruling that the father be named the parent with the exclusive right to establish the child’s residence (in English, the court said the child could live with the father instead of the mother). The trial court based its decision in part on testimony and evidence that the mother had posted photos of an erotic nature of herself on, and that the child’s best interest would not be served by remaining with the mother. The appeals court ruled that there was no abuse of discretion in considering evidence of the photos:

There was no evidence that [the child] had seen or was otherwise aware of any of the photos. But the fact that someone would post photographs like these of oneself on an internet website has some relevance because it bears upon their character. The trial court could, therefore, consider the photographs when making its best interest determination.

The court noted that there were other factors introduced that were relevant to the question of the mother’s character, including claims of fraud and attempts to alienate the child from the father. The issue on appeal was the pictures, though. Lawyers, divorce lawyers in particular, have been hearing about the dangers of social media for as long as there has been social media. Perhaps this is just an extreme example of how the things you do online can come back to haunt you.

I am curious, in a purely hypothetical way, about whether the online photos by themselves would have raised sufficient character issues for the trial court, or if they only worked in conjunction with the fraud issues to convince the court. The court acknowledged that tghere was no evidence of any harm to the child, and I’m not sure what potential harm could be alleged. Personally, I think a person can have unusual hobbies and still be a very good parent, but it’s still probably not a good idea in general to post nude pictures online. Be warned, dear reader(s).