9 Drafting Statutes 9 Drafting Statutes
9.1 Exercise: Definition Section 9.1 Exercise: Definition Section
For this assignment, we will consider a method of statutory interpretation that goes a bit beyond the plain meaning of the immediate statute to discover that other statutes may provide a definition of certain terms. Sometimes the definition section appears within the statute or adjacent to the statute. Other times it appears farther away, and you must search for it. The purpose of the exercise below is to learn that you must always be aware that terms that seem obvious may nevertheless have specific definitions that will change the outcome in particular cases, and that those definitions might appear in a completely different statute.
Just as an example we have already encountered, remember in the Staples case how federal law defined "firearm" quite differently from its ordinary definition.
Please find the Colorado assault statutes, first, second, and third degree. Focus on those assault subsections that apply to everyone, and ignore those that provide special protection for law enforcement or those that apply to those in custody (or those that relate to obstrucion of breathing pathways).
For each section and subsection, identify each word that is defined somewhere in the Colorado Penal Code. For each definition, imagine what scenario the definition will include and exclude, especially those at the margins. Many of these definitions will accomplish the legislature's objective to grade the crimes. For both assault statute and definition, please write the citation in Bluebook format.
Please bring these to class. You need not submit them. But I will call you on you for the definitions.
9.2 Group Assignment 9.2 Group Assignment
Non-consensual Pornography
I have already distributed this group assignment on Canvas, but have put it here again for your convenience for our class discussion. Below is a repeat of the instructions and question.
[This assignment will be due in a couple weeks as reflected on the Syllabus: Reading Assignments. I will post your group assignments to Canvas--they will be alphabetical. I know that it can be a little annoying or awkward to work with people whom you may not know well yet. But it is especially important to work on a statute such as this with people who may not share your views. We now have numerous tools to attain our objective, or to find compromise, as sketched more below. And I am confident you will be far more respectful and productive than most legislatures actually are--especially nowadays.
Also, the topic itself may be disturbing to some. But this crime, and related crimes involving deep fakes, have become a widespread tool primarily wielded against girls and women, imposing sometimes disabling harms on them and potentially acting to sideline women from parts of society more generally. In other words, in addition to using this crime as a drafting exercise, we must understand how criminalizing such behavior may help reduce discrimination against girls and women.]
Please draft a revenge porn statute, often called non-consensual pornography. All states have such a statute, but they differ in their particulars. Please review those in Colorado and other states, and do some background research to understand why we have such laws and why different states take different approaches--case law, law review articles, or an encyclopedia like Am Jur.
Before you draft, discuss the precise interests you are trying to protect, such as those of the potential victim and those of society more generally. Why are such laws important and how do we define the elements to meet those objectives? On the other hand, define the elements to avoid punishing behavior that, while wrongful, might not merit jail or prison time.
Use the tools we have at our disposal: (i) different types of elements, including conduct, attendant circumstance, result, and specific intent elements, (ii) mens rea (iii) grading, (iv) defined terms and a definition section, and (v) perhaps even ejusdem generis. If the group disagrees on an element, see if you can use a vaguer term (but not too vague), or ejusdem generis, or grading, to reach an acceptable compromise.
Your research will likely uncover First Amendment challenges to these laws, and what a law has to do to satisfy the First Amendment. E.g., State v. Van Buren, 214 A.3d 791 (Vt. 2019). You need not worry about the First Amendment as a technical matter, but you are certainly free to take into account the interests it protects in making sure not to overcriminalize a potential defendant's conduct.