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Legal news from Wednesday, August 29, 2012




California lawmakers approve ban on sexual orientation therapy for minors
Saheli Chakrabarty on August 29, 2012 4:14 PM ET

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[JURIST] The California State Assembly voted 51-21 on Tuesday to ban reparative therapy intended to change sexual orientation in minors. The bill [SB 1172, PDF], authored by state Senator Ted Lieu, seeks to provide protections for lesbian, gay, bisexual and transgender (LGBT) youth from allegedly deceptive, harmful therapies, while also making adults aware of potential harms associated with such reparative therapies. The bill is supported by the National Association of Social Workers, California Chapter, the American Association for Marriage and Family Therapy, California Division, the American Psychoanalytic Association and the California Board of Behavioral Sciences [advocacy websites]. It states two goals:
  1. [To establish] that any mental-health treatment seeking to eliminate emotional and sexual feelings or desires for people of the same sex must first obtain informed consent from the patient prior to initiating such sexual orientation change therapy.
  2. [To clarify] that minors are not able to provide informed consent for sexual orientation change therapy, regardless of the desire of the minor's parents for such therapy.
The bill is the first of its kind in the US.

Earlier in the year, the California Senate voted 23-13 to approve [JURIST report] a bill [SB 1172] that would ban psychotherapies aimed at changing the sexual orientation of minors. Supporters of the bill asserted that the underlying reason for the legislation is that homosexuality is not a disease and should not be treated as such. Furthermore, therapies and efforts to reverse homosexuality were found to have detrimental effects on minors' physical and mental health, leading to suicides and substance abuse. Conversely, groups such as the National Association for Research and Therapy of Homosexuality [advocacy website] voiced their opposition, arguing that most of the facts relied on in the bill are generalizations and loose assertions. The number of states legalizing same-sex marriage has been on the rise in the recent past. Currently, nine jurisdictions—Maryland, Washington, New York, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports]—have passed laws that legally acknowledge same-sex marriage. Other states, such as Illinois [JURIST report], have taken a different approach, extending civil union rights to same-sex couples.




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Missouri cell phone tracking law challenged
Saheli Chakrabarty on August 29, 2012 3:19 PM ET

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[JURIST] A Missouri law [HB 1108 materials] allowing police to track individuals' cell phones in emergencies was challenged in a federal lawsuit Monday claiming that the state law conflicts with federal law. The complaint [text, PDF], filed on behalf of a Bolivar resident, asserts that the Missouri law should be struck down under the supremacy clause of the US Constitution as it clashes with federal law. The Missouri law requires phone companies to help law enforcement agencies [AP report] in tracing cell phone signals of 911 callers or tracking a phone's location in emergency situations. The lawsuit seeks a restraining order or injunction prohibiting enforcement of the law.

Government use of modern technology to monitor and locate citizens has created legal uncertainty recently. Earlier this month a panel of judges for the US Court of Appeals for the Sixth Circuit [official website] ruled that police did not violate the Fourteenth Amendment [JURIST report] protection against illegal searches when they tracked a suspect's cell phone using the phone's global positioning system (GPS) [JURIST news archive] signal. Also this month, the American Civil Liberties Union announced that their affiliates are sending approximately 375 requests for information in 31 states to reveal how law enforcement uses location data tracking on cell phones [JURIST report], arguing that the warrantless tracking of GPS signals is unconstitutional. In June lawyers for the US Department of Justice defended the warrantless use of GPS devices [JURIST report] on suspects' vehicles despite a recent Supreme Court ruling declaring GPS tracking to be a "search" under the Fourth Amendment. The Supreme Court concluded that the government's attachment of a GPS device to a vehicle, and its use of that device to monitor the vehicle's movements, constitutes a search under the Fourth Amendment. Also in January, the Supreme Court of California ruled that law enforcement officers can legally search text messages [JURIST report] on a suspect's cell phone without a warrant incident to a lawful custodial arrest.




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India court convicts 32 for crimes during Gujarat riots
Sung Un Kim on August 29, 2012 2:45 PM ET

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[JURIST] An Indian court in Ahmedabad, Gujarat's main city, on Wednesday convicted 32 individuals for their roles in the deaths of 95 people during the 2002 Gujarat riots [JURIST news archive]. Among the convicted [AP report] was Maya Kodnani, the minister of education and child welfare in the Gujarat [official website] government, who was arrested in 2009 on charges of murder and criminal conspiracy. She resigned from her office when she was arrested but remained as the member of the state's legislative assembly. The riots began following the death of 60 Hindus in a fire aboard a train for which Muslims were blamed. The riots resulted in death of more than 2,000 people, mostly Muslims. With the conviction, the court acquitted 29 other defendants. The court is expected to announce the sentences on Friday.

This is not the first time individuals have been convicted of crimes committed during the 2002 riots. In April a trial court in Gujarat convicted [JURIST report] 23 individuals on charges of murder, conspiracy, rioting, unlawful assembly, attempted murder and destruction of evidence for participating in the killing of 23 Muslims, 18 of which were women. Another 23 defendants were acquitted for the lack of evidence. Last November another 31 people [JURIST report] were convicted of murder, arson and rioting while charges criminal conspiracy were dropped by the court. While all of the convicted were sentenced to life, charges against 42 other defendants were dropped.




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Ukraine high court denies ex-PM Tymoshenko's appeal
Sung Un Kim on August 29, 2012 1:57 PM ET

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[JURIST] Ukraine's highest court on Wednesday upheld the abuse of office conviction against former prime minister Yulia Tymoshenko [personal website, in Ukrainian; JURIST news archive]. The country's Supreme Court [official website, in Ukrainian] reasoned [WP report] that there would be no basis to rule in favor of Tymoshenko and that the prison sentence is appropriate considering the charges against her. The verdict faced heavy criticism from Tymoshenko's supporters who characterized Wednesday's ruling as politically motivated. The government denied the allegations that the criminal proceedings against Tymoshenko were a measure initiated by President Viktor Yanukovych [official website, in Ukrainian; JURIST news archive] in order to prevent the former prime minister from participating in the October elections. Tymoshenko was sentenced to seven years in prison in October 2011 over allegations involving a gas contract negotiated while she was prime minister of Ukraine.

The decision came only a day after the European Court of Human Rights (ECHR) [official website] held a hearing [JURIST report] on Tymoshenko's appeal. Last week Ukrainian prosecutors urged the Supreme Court not to hear her appeal [JURIST report]. Prosecutors told the court that Tymoshenko's trial had already established her guilt in the case, and asked the judges to let stand a seven-year prison sentence [JURIST report] in the case. Tymoshenko was not present at the hearing due to health concerns. The hearing has been delayed [JURIST report] in the past due to Tymoshenko's absence. Although Tymoshenko has previously indicated that she would discontinue all appeals in Ukrainian courts [JURIST report], she is required to exhaust all national options before appealing to the ECHR.




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Federal court rules proposed Texas voting map discriminatory
Matthew Pomy on August 29, 2012 11:53 AM ET

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[JURIST] A panel of three federal judges ruled [opinion, PDF] Tuesday that the proposed Texas voting map discriminates against black and Latino voters. Texas' population grew by 4.3 million, which gave it four more seats in the US House of Representatives. The Republican-controlled state legislature redrew the congressional districts in a way that challengers claim would make it more likely for Republicans to win those new seats. Under the Voting Rights Act (VRA) [Cornell LII backgrounder], Texas is required to get approval from Washington for changes to its voting map, and the chose to go before the three-judge panel in the US District Court for the District of Columbia [official website]. The court strongly rejected the proposed maps:
Texas argues that, "[a]t worst, the evidence shows that [it] was guilty of blithe indifference to the wants to certain [minority] Congressmen" Tex. Post-Trial Br. 29. But we do not find this explanation credible. Although we have already concluded that the Congressional Plan cannot be precleared under section's effect prong, we are also persuaded by the totality of the evidence that the plan was enacted with discriminatory intent. Texas did not adequately engage with the evidence raised by the other parties on this point ... we find sufficient evidence to conclude that the Congressional Plan was motivated, at least in part, by discriminatory intent. ... Finally, the incredible testimony of the lead House mapdrawer reinforces evidence suggesting mapdrawers cracked [voter tabulation districts] along racial lines to dilute minority voting power.
Texas Attorney General Greg Abbott said he plans to appeal the ruling [press release]. If the ruling is upheld, Texas will be forced to redraw the map in a way that would allow the state to elect more minority representatives.

The ruling will not affect the 2012 elections because Texas will be using interim maps [JURIST report] drawn up by a panel of three judges in the US District Court for the Western District of Texas [official website] in March. The interim maps were issued after the US Supreme Court [official website] rejected previous interim redistricting maps in an emergency appeal [JURIST reports] filed in December.




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Federal judge awards $21 million in lawsuit against former Somalia PM
Matthew Pomy on August 29, 2012 10:49 AM ET

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[JURIST] A judge for the US District Court for the Eastern District of Virginia [official website] on Tuesday awarded $21 million [order, PDF] to seven Somalis in a lawsuit [case summary] against former Somali prime minister Mohamed Ali Samantar [JURIST news archive]. The lawsuit, which started in 2004 and made it all the way to the US Supreme Court, alleges Samantar was responsible for the killing and torture of members of the Isaaq clan in Somalia throughout the 1980s under former dictator Siad Barre. The Somalis bringing the lawsuit, some of whom fled to the US and some of whom stayed in Somalia, were represented by the Center for Justice and Accountability [advocacy website]. They claim to have been subjected to torture or potential executions at the hands of the Barre regime and brought the lawsuit under the Torture Victim Protection Act of 1991 [28 USC § 1350]. The judgement included $2 million in punitive damages and $1 million in compensatory damages to the individual plaintiffs. Samantar's lawyers say they will appeal the ruling [AP report]. The question of Samantar's immunity is still on appeal.

This is the latest step in a case that has lasted eight years and gone through several different court systems. In February Samantar said he would not contest the lawsuit [JURIST report]. Samantar continues to claim immunity even though his claim was denied by both the Eastern District Court last February and the Supreme Court in June 2010 [JURIST reports].




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Europe rights court condemns Italy ban on embryo screening
Keith Herting on August 29, 2012 10:48 AM ET

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[JURIST] The European Court of Human Rights (ECHR) [official website] ruled [judgment, in French] Tuesday that Italy's ban on embryonic screening is a violation of human rights. According to a press release issued by the court, the ban is a violation of Article 8 of the European Convention on Human Rights, which allows for the "right to respect for his private and family life." The ECHR found in favor of an Italian couple whose first born suffers from cystic fibrosis. The couple wishes to screen in vitro fertilization (IVF) embryos to avoid having any future children who will suffer from the disease. The statement from the court emphasized what they felt was an inconsistency in Italian policy, noting: "prohibiting the implantation of only those embryos which were healthy, but authorising the abortion of foetuses which showed symptoms of the disease ... left the applicants only one choice, which brought anxiety and suffering: starting a pregnancy by natural means and terminating it if prenatal tests showed the foetus to have the disease." The ECHR ordered the Italian government to pay the applicant €17,500 (USD $21,900) in damages and court costs.

IVF is a type of fertility treatment for couples who have had difficulty conceiving children or wish to avoid passing genetic traits on to their children. Through IVF, a woman's eggs are removed and fertilized outside the body. Successfully fertilized embryos are then implanted into the woman for gestation. Italy defends its ban on embryonic screening by claiming that they wish to "avoid the risk of eugenic abuses," specifically the potential for future "designer babies." The largely Catholic nation has some of the strictest laws in Europe related to artificial procreation.




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Russia rights council questions prison sentences for feminist activist band members
Keith Herting on August 29, 2012 10:41 AM ET

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[JURIST] The Russian Presidential Council on Human Rights [official website, in Russian], an independent advisory body, on Tuesday questioned the legitimacy [statement, in Russian] of the recent guilty verdict and sentence for three members of the Russian feminist activist group Pussy Riot [RAPSI backgrounder; JURIST news archive]. The rights council, whose members are appointed by the president, worries [AP report] that the legitimacy and justness of the band's sentence is questionable. The council took particular note of the harsh two-year sentence for the women, two of whom have small children, as well as the women being kept hand-cuffed and within a bullet-proof cage when the verdict was announced. The council, whose members were appointed by former President Dmitry Medvedev, maintains a purely advisory role and holds little political sway over President Vladimir Putin [official website, in Russian; JURIST news archive].

Pussy Riot's controversial trial ended [JURIST report] on August 17 with a guilty verdict and two-year prison sentences for each of the three women. Earlier this week, lawyers for the band appealed the sentence [JURIST report]. Specifically, band members Natalia Tolokonnikova, Maria Alyokhina, and Yekaterina Samutsevich were found guilty of "hooliganism motivated by religious hatred," a charge based on the group's "guerrilla performance" of a protest song in February at the altar of Moscow's Christ the Savior Cathedral. Though the charge carries a maximum sentence of seven years, prosecutors originally requested sentences of three years [JURIST report]. The prosecution of Pussy Riot has been criticized as a politically motivated move by Putin to discredit his opposition. Although defense lawyers for the band requested that the judge recuse herself [JURIST report] from the case due to politically motivated decisions, Judge Marina Syrova declined even hearing the motion for her recusal. The women were arrested in March, and their trial began [JURIST report] at the end of July.




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Federal appeals court finds Indiana sex offender registry violated due process
Julia Zebley on August 29, 2012 6:33 AM ET

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[JURIST] The US Court of Appeals for the Seventh Circuit [official website] ruled [opinion text] Tuesday that by not allowing Indiana citizens to appeal erroneous entries on the state Sex and Violent Offender Registry [official website] the Indiana Department of Corrections (DOC) [official website] violated Due Process [LII Cornell backgrounder] rights. An Indiana citizen who committed lesser sex offenses found he was listed as a violent sexual predator, which entailed a significantly more burdensome level of restrictions. Despite this inaccuracy, he was unable to appeal the listing, as the DOC only had procedures for incarcerated sex offenders to attempt to correct errors. A three-judge panel ruled unanimously that this was insufficient. The American Civil Liberties Union of Indiana (ACLU-IN) [advocacy website], which brought the suit, lauded the decision [press release].

The varying restrictions imposed by sex offender registries [JURIST news archive] have been under scrutiny as of late. The US Supreme Court ruled [JURIST report] in February that sex offenders who committed their offenses prior to the passage of the federal sex offender registry do not have to list themselves unless the Attorney General commands them to. A law that banned registered sex offenders from public libraries [JURIST report] was also struck down in federal appeals court that month. One commentator suggested [JURIST comment] that such restrictions "do little to prevent repeat offenses."




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France opens inquiry into circumstances surrounding Arafat's death
Julia Zebley on August 29, 2012 5:56 AM ET

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[JURIST] The Tribunal de grande instance de Nanterr [official website, in French] announced Tuesday that a three-judge panel will investigate the death of former Palestinian leader Yasser Arafat [BBC profile; JURIST news archive]. The investigation was prompted in August by Arafat's widow and daughter [JURIST report] after an Al Jazeera [media website] investigation [report] discovered traces of polonium-210 [IAEA backgrounder] on his final effects. The Institut de Radiophysique [official website, in French] conducted the tests for Al Jazeera and released a report suggesting that high levels of radiation could be found in Arafat's body. The organization has been granted access to his body to test for radiation poisoning. However, medical records [text, in French] released by Slate [Slate.fr report] do not suggest radiation poisoning was apparent.

Polonium-210 is best known as the poison used to kill former Russian spy Alexander Litvinenko [BBC obituary] in London in 2006. Arafat's health began to fail in October 2004, at which point he was flown to a Paris hospital. Arafat died [JURIST report] at age 75 on November 11, 2004. The week leading up to Arafat's death proved to be highly tumultuous. Only a day before an Islamic judge ruled [JURIST report] that the former leader's life support system could not be switched off despite his near-death state and burial preparations. On November 4 CBC News reported [JURIST report] that Israeli television had announced Arafat's death, only to be contradicted shortly thereafter by Arafat's French hospital. Luxembourg Prime Minister Jean-Claude Juncker also confirmed the head of state's death that day. No cause of death for Arafat has ever been released, and by many accounts, he was in good health until immediately preceding his death.




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