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Author Topic: Pre-Wording Paper Thread  (Read 31601 times)
kevin kuswa
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« Reply #15 on: May 21, 2014, 12:56:29 PM »

Ryan's and Jason's comments are not necessarily at odds.  We definitely need to "try to get it right"--the point, though, is that legalization and decriminalization may be so slippery when compared to one another, across different crimes or activities, and across different jurisdictions that trying too hard to get it right may actually take us down the wrong path.  We'll see--we're all working in part on this question so I am assuming we'll find a way to write some good resolutions.  The best approach is to collect evidence and provide feedback and suggestions--keep it coming!  Kevin
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BrianDeLong
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« Reply #16 on: May 22, 2014, 09:09:16 AM »

Suggestion: Resolved: Government (criminal/civil) penalties associated with marijuana, prostitution etc. should be reduced

Legalization includes a regulatory regime defining what is legal, decriminalization removes penalties and regulations (no restrictions), unregulated is no-laws or legal framework

Dr Elaine Mossman, Honorary Research Fellow Victoria University of Wellington, 2007, International Approaches to Decriminalising or Legalising Prostitution, Prepared for the Ministry of Justice by Crime and Justice Research Centre Victoria University of Wellington, http://prostitution.procon.org/sourcefiles/newzealandreport.pdf

The Ministry of Justice commissioned the Crime and Justice Research Centre to examine overseas legalised and decriminalised models of prostitution law reform. The work is to inform the statutory review of the Prostitution Reform Act 2003 (PRA) to be completed in 2008.
There have been developments in the legal approach to prostitution adopted by different countries, with a significant shift away from prohibition, towards legalisation and decriminalisation. But it became evident in preparing this review that there is much confusion over the main legislative approaches to prostitution in different jurisdictions. There was often misinterpretation – or at least it could appear so. One difficulty was the variation in the terms used to describe the legislative position, and how they were defined.
We clarify the main three approaches used to classify the jurisdictions covered by this review. These are (i) criminalisation; (ii) legalisation; and (iii) decriminalisation.
Criminalisation
For the purposes of this review, we classified countries as criminalised regimes where it is not legally possible to engage in prostitution, because prostitution or its associated activities would be contravening some law, regardless of the level of tolerance existing. (In some criminalised regimes, there can be a tolerant climate. Prostitution is known by enforcement agencies to exist, but prosecutions are rarely made.)
Criminalisation makes prostitution illegal with related offences appearing in the criminal code. It seeks to reduce or eliminate the sex industry and is supported by those who are opposed to prostitution on moral, religious or feminist grounds. Jurisdictions that have criminalised prostitution subdivide into two groups:
i. Prohibitionist – where all forms of prostitution are unacceptable and therefore illegal. This is the approach taken in most states of the USA and countries in the Middle East.
ii. Abolitionist – a modified form of prohibition which allows the sale of sex, but bans all related activities (e.g. soliciting, brothel keeping, and procurement). Making these related activities illegal effectively criminalises prostitution as it is virtually impossible to carry out prostitution without contravening one law or another. The abolitionist approach often focuses on eliminating or reducing the negative impacts of prostitution. It is one currently operating in countries such as England and Canada.
Sweden is the only country so far to criminalise the buyers of sex rather than sex workers. The aim was to end prostitution, rather than regulate it – since it was viewed as violence against women and a barrier to gender equality. Norway and Finland are now considering this approach.
Legalisation
This is where prostitution is controlled by government and is legal only under certain state- specified conditions. The underlying premise is that prostitution is necessary for stable social order, but should nonetheless be subject to controls to protect public order and health. Some jurisdictions opt for legalisation as a means to reduce crimes associated with prostitution.
Key indicators of legalised regimes are prostitution-specific controls and conditions specified by the state. These can include licensing, registration, and mandatory health checks. Prostitution has been legalised in countries such as the Netherlands, Germany, Iceland, Switzerland, Austria, Denmark, Greece, Turkey, Senegal, the USA state of Nevada, and many Australian states (Victoria, Queensland, ACT and Northern Territory).
Decriminalisation
Decriminalisation involved repeal of all laws against prostitution, or the removal of provisions that criminalised all aspects of prostitution. In decriminalised regimes, however, a distinction is made between (i) voluntary prostitution and (ii) that involving either force and coercion or child prostitution – the latter remaining criminal.
The difference between legalised and criminalised regimes has been described as often largely a matter of degree – a function of the number of legal prostitution-related activities, and the extent of controls and restrictions that are imposed. The key difference between legalisation and decriminalisation is that with the latter there are no prostitution-specific regulations imposed by the state. Rather, regulation of the industry is predominantly through existing ‘ordinary’ statutes and regulations covering employment and health for instance.
The aims of decriminalisation differ from legalisation in their emphasis.
While the protection of social order is also relevant to decriminalisation, the main emphasis here is on the sex worker – respecting their human rights, and improving their health, safety and working conditions. Decriminalisation is also recognised as a way of avoiding the two-tier reality of legal and illegal operations, with the latter operating underground.
Currently, only New South Wales (Australia) and New Zealand have adopted decriminalisation. But there are elements of legalisation in both jurisdictions – for instance, brothel operators in New Zealand require certification; and street-based work in New South Wales is still prohibited.
Unregulated regimes
There are some jurisdictions where prostitution is entirely unregulated. A review of 27 countries in Central and Eastern Europe and Central Asia found this was the case in eleven of them. These countries are not included in this review, as there are no reforms intended or legislative recognition of prostitution as either legal or illegal.
Categories of prostitution offences
The legality of different aspects of prostitution varies across different jurisdictions, with some being legal (e.g. prostitution in a state-regulated brothel), and others not (e.g. soliciting on a street). Prostitution involving a seller and buyer may be legal, but the involvement of third parties such as brothel managers or pimps illegal – as in Denmark and Iceland for instance.
Prostitution-related laws vary greatly, but can generally be grouped into three categories: (i) laws aimed at the sex worker; (ii) laws aimed at third parties involved in the management and organisation of prostitution; and (iii) laws aimed at those who purchase commercial sex. The two most significant criminal prohibitions relate to either soliciting in a public place and brothel keeping. The acts of advertising prostitution services or the premises used for prostitution have also been made an offence in many jurisdictions.
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BrianDeLong
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« Reply #17 on: May 22, 2014, 09:16:18 AM »

Especially for some activities (prostitution) it would be a mistake to only allow affirmatives the ability to decriminalize. I question whether affirmatives will be able to remove civil penalties.  Furthermore, the backlash solvency takeout argument where local jurisdictions ban activities that allow the object of the resolution to exist will be fairly devastating. In other words, decriminalize pot possession (locally and federal) then North caroline ban's its production or Montana makes distribution impossible with bank regulations/taxes etc. That's one of the reasons I think we may need some sort of "associated to" expansion phrase to current criminal law that can help affs with durable fiat that hedges against new laws that functionally inhibit rez areas.
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kevin kuswa
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« Reply #18 on: May 22, 2014, 09:24:49 AM »

Brian,

Smart stuff here.  How do you think this influences the agent discussion--all the wordings passive, allow major aff changes, but don't go with decrim?  Starting to wonder if this topic does not lean toward a States and localities specified agent?  kevin

Especially for some activities (prostitution) it would be a mistake to only allow affirmatives the ability to decriminalize. I question whether affirmatives will be able to remove civil penalties.  Furthermore, the backlash solvency takeout argument where local jurisdictions ban activities that allow the object of the resolution to exist will be fairly devastating. In other words, decriminalize pot possession (locally and federal) then North caroline ban's its production or Montana makes distribution impossible with bank regulations/taxes etc. That's one of the reasons I think we may need some sort of "associated to" expansion phrase to current criminal law that can help affs with durable fiat that hedges against new laws that functionally inhibit rez areas.
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kevin kuswa
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« Reply #19 on: May 22, 2014, 09:46:51 AM »

Not that we would say only Sates and localities, but the aff has to be able to access them. Passive may go too far, that's what we are looking into.  I am in some pretty in-depth conversations with first-round debaters now working in the field...one says decrim is much better (and some good reasons why that I am sorting through), the other says legalize would be better, but make it federal so as to counter the aff bias.  A third says we can finangle a way to use both, but we have to work on how the agents would work.  All three say the agent question (who does the elimination of penalties) is really at the heart of the debate because the laws are so divergent on the different levels of jurisdiction.  Messy--but very interesting.  Kevin

Brian,

Smart stuff here.  How do you think this influences the agent discussion--all the wordings passive, allow major aff changes, but don't go with decrim?  Starting to wonder if this topic does not lean toward a States and localities specified agent?  kevin

Especially for some activities (prostitution) it would be a mistake to only allow affirmatives the ability to decriminalize. I question whether affirmatives will be able to remove civil penalties.  Furthermore, the backlash solvency takeout argument where local jurisdictions ban activities that allow the object of the resolution to exist will be fairly devastating. In other words, decriminalize pot possession (locally and federal) then North caroline ban's its production or Montana makes distribution impossible with bank regulations/taxes etc. That's one of the reasons I think we may need some sort of "associated to" expansion phrase to current criminal law that can help affs with durable fiat that hedges against new laws that functionally inhibit rez areas.
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BruceNajor
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« Reply #20 on: May 22, 2014, 09:52:19 AM »

I like Brian's suggestion.  One thing that I think we should be mindful of, however (and I apologize if this is already on facebook, I stopped doing "debate on facebook" a little while ago) is the potential for smaller affs that focus on local / state laws.  Now this is a bad example, because I think it was recently repealed, but selling sex in Louisiana would land one on a "registered sex offenders" list:

"Louisiana's "Crime Against Nature" statute punishes solicitation of oral or anal sex for compensation more harshly than the state's criminal law penalizes prostitution generally. Not only does a second or subsequent offense of offering oral or anal sex for money carry much longer prison terms and higher fines than any number of prostitution convictions, it also subjects individuals convicted of Solicitation of Crime Against Nature (SCAN) to mandatory sex offender registration.
No state other than Louisiana requires anyone convicted solely of selling sex for money to register as a sex offender. Only in Louisiana does merely offering to provide oral or anal sex in exchange for something of value land you on the sex offender registry."(http://www.bilerico.com/2011/02/prostitutes_are_not_sex_offenders.php)


Like I said, I don't think that is the case anymore in Louisiana, but I would be surprised if there weren't other states or local ordinances that impose harsher than necessary penalties for whatever we include on the list, and we may want to avoid affirmatives that end the most extreme examples of punishment, but leave the rest of the status quo in place.
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Bruce Najor
Wayne State Debate
BruceNajor[at]Gmail[dot]com
kevin kuswa
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Posts: 345


« Reply #21 on: May 22, 2014, 10:10:23 AM »

The flip side of this is the PIC ground that opens up for the neg....Herndon figured this out for sure and writes about it in the paper--ultimately, we need to find a good modifier that allows for some PIC ground, but not everything.
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BruceNajor
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« Reply #22 on: May 22, 2014, 10:38:50 AM »

Would there be any support for mandating the repeal of federal penalties for X,Y, and Z, but also allowing the affirmative to fiat state / local ordinances as well?  Using a passive wording from the topic paper for example:

Laws prohibiting one or more of the following ought be decriminalized on at least a Federal level: X / Y / Z

or to borrow from Brian's wording suggestion:

Resolved: Penalties associated with marijuana, prostitution etc. should be reduced on at least a federal level.

"federal level" is not researched, and there may be better ways to make it sound more fluid (or not).
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Bruce Najor
Wayne State Debate
BruceNajor[at]Gmail[dot]com
kevin kuswa
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Posts: 345


« Reply #23 on: May 22, 2014, 10:53:56 AM »

These seem to be inching closer, not only do we need to research "federal level," we also need to research "laws prohibiting"--there may be laws that "restrict" or "penalize" or even "punish" that do not necessarily "prohibit" in the totalizing sense.  Any volunteers?

Would there be any support for mandating the repeal of federal penalties for X,Y, and Z, but also allowing the affirmative to fiat state / local ordinances as well?  Using a passive wording from the topic paper for example:

Laws prohibiting one or more of the following ought be decriminalized on at least a Federal level: X / Y / Z

or to borrow from Brian's wording suggestion:

Resolved: Penalties associated with marijuana, prostitution etc. should be reduced on at least a federal level.

"federal level" is not researched, and there may be better ways to make it sound more fluid (or not).
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lgarrett
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« Reply #24 on: May 22, 2014, 11:17:27 AM »

I think legalize via the federal government would resolve the concern about decriminalization and state circumvention. I agree that straight decriminalize does not really have advocates in some of the must include areas. Decriminalzie also puts the AFF in the vulnerable spot across all areas because the most likely state response is criminalization not acquiescence to decriminalization.
 
I do not think the agent of the resolution should solely be non-federal actors. Being NEG against a singular state doing something in an area is too burdensome. I think federal legalization produces arguments about preemption, federalism and allows solvency deficits to the CP to have the states and localities remove their penalties. I don't think the AFF should get to harmonize laws across all localities. . .I think that is a relevant point of debate, but is best/only accessed via legalization and not decriminalization. The state response to decriminalization is fairly easy to predict. To legalization there are multiple possibilities and that is what we should debate.
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BruceNajor
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« Reply #25 on: May 22, 2014, 11:31:43 AM »

Mandating that the affirmative can only legalize through the federal government seems like a bad idea to me.  The big scary heffalump in the room is the constitutional amendment CP.  Instead of the government striking down state laws against prostitution as unconstitutional with an expanded interpretation of the constitution / creating new or changing old precedent, why not just fiat a new constitutional amendment, bypass the court disads, and call it a day. 

Yea, the affirmative could impact turn the "precedent" disads, but, I mean, c'mon, do aff teams even know what impact turns are anymore?  Smiley
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Bruce Najor
Wayne State Debate
BruceNajor[at]Gmail[dot]com
kevin kuswa
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« Reply #26 on: May 22, 2014, 11:58:26 AM »

Bruce is right here.  Lincoln, Federal legalization would not solve for states and localities (especially not across the board), absent Constitutional action.  Take a good look at the RJ-Herndon dialogue at the bottom of the paper.  The only aff advantages there would be on a federal level (which might be a decent advantage for marijuana, but would make prostitution and organ selling non-starters). No one is saying that States and localities would be the only actors--the question is whether to include federal/state/local actors, use the "at least" language for federal action (thanks for that, Bruce) or some version of a passive construction (looking better and better).  Also, Lincoln, the second half of your post is a bit convoluted and needs clarification--what do you mean by "straight decriminalization" and why should the aff not be able to access some harmonization in localities?  The neg should be fine even if the aff has the ability to actually solve in jurisdictions below the federal level.

I think legalize via the federal government would resolve the concern about decriminalization and state circumvention. I agree that straight decriminalize does not really have advocates in some of the must include areas. Decriminalzie also puts the AFF in the vulnerable spot across all areas because the most likely state response is criminalization not acquiescence to decriminalization.
 
I do not think the agent of the resolution should solely be non-federal actors. Being NEG against a singular state doing something in an area is too burdensome. I think federal legalization produces arguments about preemption, federalism and allows solvency deficits to the CP to have the states and localities remove their penalties. I don't think the AFF should get to harmonize laws across all localities. . .I think that is a relevant point of debate, but is best/only accessed via legalization and not decriminalization. The state response to decriminalization is fairly easy to predict. To legalization there are multiple possibilities and that is what we should debate.
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lgarrett
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« Reply #27 on: May 22, 2014, 12:13:16 PM »

That RJ-Herndon dialogue didn't really have any cards in it. If Congress says you can sell your organs they don't need to give you a constitutional right to invalidate a state's ability to prevent you from doing so. I think your concern about state and localities only exists in the world of decriminalization and not legalization. I think states easily circumvent decriminalization. I think it is less easy and a good debate concerning legalization.

I think fiating that federal, states and local governments agree with one another helps the AFF dodge a core issue (federalism, preemption etc, one size fits all etc.) I think the AFF can access solvency claims that can be proven sufficient with solely the federal government (assuming leglaization and not decriminalization)

I agree there would still be a debate if the AFF gets to fiat all levels of government, I just think those debates would be worse. 
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BruceNajor
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« Reply #28 on: May 22, 2014, 12:42:03 PM »

If Congress says you can sell your Organs, and a state says "no you can't"... they're going to Court.  If they're going to Court, durable fiat supposes the USFG wins.  If the USFG wins, the Court has to "give a constitutional right to invalidate."

I'm worried about what kind of ground that gives the neg to just say "constitutional amendment CP" ... solves the "organ sales good" portion of the aff.  Won't solve the "Supreme Court ruling expanding amendment X good" advantage, I suppose, which was, more or less, the "policy aff ground" on the Courts topic. 

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Bruce Najor
Wayne State Debate
BruceNajor[at]Gmail[dot]com
lgarrett
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« Reply #29 on: May 22, 2014, 12:52:25 PM »

Bruce I disagree that if the federal government and state government are opposed to one another it automatically leads to court involvement. I also disagree that for the court to rule in favor of the federal government they have to create a constitutional right. The federal government can compel the states to not challenge the law through non court action and the court can rule federal laws valid/state laws invalid beyond saying individuals have a right to engage in a particular behavior.
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