A Defense to the Prosecution

[MasterOfNone]

Someone tell me why/how PC 21.06 is still on the books....


http://www.statutes.legis.state.tx.us/d ... /pe.21.htm" onclick="window.open(this.href);return false;

It does say 21.06 was declared unconstitutional, but 21.01(1) still says pretty much the same thing.

21.01(1) is just a definition and it does not indicate the sex of the persons, the definition is used in later statues such as 21.07. I wondered the same thing about 21.06, I don't understand why they left it in.

By 21.01(1)(B), isn't a colonoscopy "Deviate sexual intercourse"?

[wgoforth]

Someone tell me why/how PC 21.06 is still on the books....


http://www.statutes.legis.state.tx.us/d ... /pe.21.htm" onclick="window.open(this.href);return false;

It does say 21.06 was declared unconstitutional, but 21.01(1) still says pretty much the same thing.

21.01(1) is just a definition and it does not indicate the sex of the persons, the definition is used in later statues such as 21.07. I wondered the same thing about 21.06, I don't understand why they left it in.

By 21.01(1)(B), isn't a colonoscopy "Deviate sexual intercourse"?

I assume you were joking... but the section deals with sexual matters. I don't know anyone, Dr or patient, who derives any pleasure from a colonoscopy. Many things done in medicine would be otherwise improper/immoral. However I have known of some Drs who did pleasure in some OBGYN matters and once established, lost their license or was in danger thereof.

[Dave2]

Someone tell me why/how PC 21.06 is still on the books....


http://www.statutes.legis.state.tx.us/d ... /pe.21.htm" onclick="window.open(this.href);return false;

It does say 21.06 was declared unconstitutional, but 21.01(1) still says pretty much the same thing.

21.01(1) is just a definition and it does not indicate the sex of the persons, the definition is used in later statues such as 21.07. I wondered the same thing about 21.06, I don't understand why they left it in.

By 21.01(1)(B), isn't a colonoscopy "Deviate sexual intercourse"?

I assume you were joking... but the section deals with sexual matters. I don't know anyone, Dr or patient, who derives any pleasure from a colonoscopy.

That doesn't mean it wouldn't meet the statutory definition.

[WildBill]

If a doctor takes a knife and cuts you open, isn't that using deadly force?

[wgoforth]

If a doctor takes a knife and cuts you open, isn't that using deadly force?

[speedsix]

...maybe not, but the bill he sends for doing it is a crime!!!

[WildBill]

...maybe not, but the bill he sends for doing it is a crime!!!

...if he takes out your appendix, then it's armed robbery...
...if he operates on you at night, you could probably shoot him...

[wgoforth]

...maybe not, but the bill he sends for doing it is a crime!!!

...if he takes out your appendix, then it's armed robbery...
...if he operates on you at night, you could probably shoot him...

They don't call it medical PRACTICE for nothing!

[WildBill]

...maybe not, but the bill he sends for doing it is a crime!!!

...if he takes out your appendix, then it's armed robbery...
...if he operates on you at night, you could probably shoot him...

They don't call it medical PRACTICE for nothing!

After all of those years of education and residency, you'd think they would have it down by then.

[johnson0317]

Great, I am a Family Nurse Practitioner...guess I am still working at getting it right.

RJ

[ScottDLS]

"A defense to prosecution" if I recall correctly, means that you can use it as a defense, at your trial, and it is affirmative in nature, which basically means that you are guilty until you can prove your defense.

IANAL but I have several friends that are, and that is the way I recall their explanations, maybe Charles could chime in on this one?

It's the other way around. At trial, the prosecution must refute the Defense, "beyond a reasonable doubt" in order for the the defendant to be convicted. However, the prosecution does not have to refute the defense simply to charge you. A defense is pretty powerful, though not so much as an exception. To paraphrase Johnny Cochrane... "If the Defense does fit, you must acquit..."


The term is a actually defined in the penal code:

Sec. 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."

(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.

(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.

(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.

(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.