chollie

I'd have to see a government-issued, TSA-approved photo ID, as well as hear 'him' say 'his' name out loud.

JumboD

But if this went to trial I'm assuming the defendant would subpoena the "SOP" referred to by the TSO, or else if the defendant here counter sued, then wouldn't this still be subpoenaed by one side or the other in order to determine whether SOP was followed? Since SSI isn't classified, can a court not compel TSA to disclose it?

JumboD

Regardless of when it happened, Bruce did the world a favor.

nachtnebel

But if Ms Alkon countersues, what will she walk away with from Ms. Magee? Her last paycheck and a pair of used blue gloves?

Not a treasure trove there...

InkUnderNails

This story was just addressed on Fox and Friends. The Judge (Napolitano) was supportive of the bloggers right to say what she wanted about her treatment at the CP.

n4zhg

Plus 50% of all future paychecks until the award is settled.

Agreed, not a treasure trove, but enough of an example to any other government airport clerk that this crap never gets tried again. Which is the entire point.

You have no constitutional right not to be butt-hurt. Especially if you're a government employee that gets off on prison guard fantasies.

bdschobel

The bolded part is almost certainly untrue.

Bruce

RichardKenner

Can you explain the legal theory that makes that determination relevant to the case? I don't see it.

Boggie Dog

Financial ruin might be a motivator to limit such suits in the future.

mikemey

Actually Bruce, I've read in a couple of the blog posts that there is a law in California stating that the person who brings a frivolous civil suit can be held responsible for attorney fees for both sides. I don't have a link handy (damned work filters) but I'm sure someone will be able to provide one.

bdschobel

This lawsuit may be doomed to failure but it hardly qualifies as frivolous. The chances that a judge would force the plaintiff to pay the defendant's legal fees seem very low to me.

Bruce

gojirasan

In Massachusetts any time a TSO makes unwanted genital contact it is a clearcut crime known as Indecent Assault. The maximum sentence is 5-10 years in State Prison depending on the age of the victim. It doesn't require any sexual motive. It's the act not the state of mind of the actor that is relevant. So why is it that no BOS TSOs are sitting in state prison here? I think we all know why:

1. No DA is going to take the case. He will see it as the TSO doing his job. He would see any attempt at prosecuting a TSO for doing his job as a state challenge to the federal government which is a can of worms he is not interested in opening even if he is sympathetic with the victim (imagine say a 10 year old girl who was treated so roughly that her hymen was ruptured leading to a bloody crotch right on video).

2. The TSO would argue that they are just doing their job, following protocol in accordance with their federal mandate. The argument would be that it is not Indecent Assault because as TSOs they are permitted to touch people's 'resistance' despite the fact that it would land anyone else in jail here.

So let's say that the next time I fly out of BOS I submit to the genital rubdown and then call the police and accuse the TSO of Indecent Assault (touching my pee pee). I contact a lawyer and he informs me that nothing is going to happen for the above two reasons. I go public with a video of the TSO stroking and karate chopping my resistance and post his full name on various web sites (and maybe even his home address and telephone number). The TSO sues me for libel (or whatever).

In order to be libel, my accusations have to be false. TSO claims that the accusations are false because he is allowed to touch my genitals. So it cannot be indecent assault (faulty logic but what do you expect?). It is part of the standard procedure for his federal agency which explicitly lists touching 'resistance' or 'the inner thigh where it meets the torso' as part of his job. He could claim that if he hadn't touched me all inappropriate he might have been fired for not doing his job. AFS types would be very sympathetic with this viewpoint.

So now what do you have? You have a state vs. federal issue. The feds say that the behavior is acceptable as part of the 'war on terror' whether a particular state wants to call it 'indecent assault' or not. The activist DA who dared to press charges says the actions listed in their SOP are a serious crime in his state and the fact that the feds put a criminal act in their SOP is not relevant. The feds beg to differ. The airport is federal jurisdiction. The employee works for the federal government, but is a Massachusetts resident... Ad nauseum.

I used the Massachusetts indecent assault law as an example because the conflict between federal SOP and state law is so clear cut. TSOs are constantly breaking that law. Even the one for under 13 year olds that carries a maximum 10 year prison sentence.

When Amy asked a lawyer about sexual assault charges this is the what he told her:

Now it is true that California has very lax sexual assault laws. There seems to an especially fine line in that state between sexual assault and rape. It's a state where the mere touching of a women's breasts or crotch over their clothes without permission is not against the law per se. So what the lawyer said may very well be true there. Although it is hard to believe that even a 1 inch penetration through clothes would be allowed. If it is not against the law to finger fsck a California girl through her clothes without her permission then Thedala wouldn't even need to play the 'just doing her job to keep us all safe' card.

Even that lawyer believes that the SOP is a valid defense. If the allowance of the act in the SOP means that it is neither sexual assault nor rape, then I could see how a judge might rule in favor of Thedala. It doesn't matter how hard she pressed into her vagina or how deep her hand went inside of her. What that lawyer said seems to imply that if the SOP allows it then by definition it can be neither sexual assault nor rape.

Assuming of course that the SOP really does permit it and that Thedala wasn't just acting out of lust or malice in a moment of weakness because she knew she could get away with it. While some of us would like to believe that the first amendment protects nearly all speech, I think the political/judicial reality says otherwise. If Thedala is only relying on the facts of the case to show that what Amy said is false that is one thing, but if she is relying on the allowance of her act by the SOP that is quite another. So far that seems to be the route Thedala's attorney is taking.

What if the TSA decides to allow cavity searches with full gloved finger insertions in both anal and vaginal cavities? That would certainly seem to fit the legal definition of rape in most jurisdictions, at least in the US. There wouldn't be any issue about it being through clothes or not being a deep enough penetration. It would be clear cut full depth penetration. Would the above logic not still apply? Basically, it seems that no act that is normally a sex crime is considered a sex crime when done by a TSO following SOP. So yes, the SOP matters.

Spex

Thanks SATTSO

Now that that's out of the way, could you please respond to my initial question? What is your definition of rape?

sbrower

Unfortunately, as with many of the posts here by people, this statement is untrue. Here is the official jury instruction that would be read to a jury, in Massachusetts, on an "Indecent Assault" case. I don't have time to give a full analysis, but you will see that it has exceptions such as "without justification" etc.

whitearrow

I'm guessing you mean CCP 128.7. This statute allows a judge to impose sanctions if a frivolous lawsuit is pursued, but the amount is at the discretion of the judge and may well not cover all of the defendant's attorney fees -- it isn't an attorney fee statute. The amount of the sanctions is meant to deter the conduct, not compensate the victim.

Plus, "frivolous" is a pretty high standard, and there are a lot of procedural hoops to jump through before sanctions are even available, including a notice and safe harbor requirement. It's not a slam-dunk by any means.