Time Magazine has an article about the differing laws in various states on whether a man can be convicted of rape if the female consents, and then during intercourse, she changes her mind.

The answer depends on where you live. The highest courts of seven states, including Connecticut and Kansas, have ruled that a woman may withdraw her consent at any time, and if the man doesn't stop, he is committing rape. Illinois has become the first state to pass legislation giving a woman that right to change her mind. But in Maryland--as well as in North Carolina--when a woman says yes, she can't take it back once sex has begun--or, at least, she can't call the act rape.

The Maryland case is under appeal.

If the law doesn't recognize a woman's right to say no during sex, [victims' rights advocates] say, there is no recourse for a woman who begins to feel pain or who learns her partner isn't wearing a condom or has HIV. Those who are wary of these measures say they're not arguing against having a man stop immediately when a woman no longer wants to have sex, but with how to define immediately.

That is totally illogical to me. If it starts to hurt, or there's no protection, and he doesn't pull out, it may be unwanted sex at that point but it's not rape. Let's not trivialize real rape to accomodate definitions of consensual sex gone awry. Make up a new crime for that if it's going to be illegal. But to brand someone as a sex offender for life, require sex offender registration, submit them to possible life sentences? Come on.

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Barack Obama is making two big decisions this week: to file a statement of candidacy for President and to quit smoking.

"I've never been a heavy smoker," Obama told the Tribune, "I've quit periodically over the last several years. I've got an ironclad demand from my wife that in the stresses of the campaign I don't succomb. I've been chewing Nicorette strenuosly."

More from the Chicago Tribune, here.

Is this a campaign stunt? To get millions of America to join him and thereby become vested in his success? Probably not, but I could see it happening.

Remember Chai Vang, the Hmong hunter convicted of killing six white hunters in Wisconsin a few years ago?

It appears there may have been a revenge killing. A White hunter, James Allen Nichols, is accused of killing a Hmong hunter, Cha Vang, earlier this month. (yes, the names are that similar.) Was it an accidental shooting? Consider this:

There was no need to shoot Vang, stab him six times and then shove a 3- to 4-inch stick down his throat, what Allen has been accused of doing. Maybe, in the heat of the moment, it became a crime of hatred.

The Hmong community is seeking justice.

The jury continues to hear tapes of Scooter Libby's grand jury testimony today. Swopa at Firedoglake and the Media Bloggers' Association's bloggers are live-blogging.

I can't draw conclusions until I've read transcripts of all of his testimony. But, as to what Libby's lawyers will argue to the jury, here is the "Theory of Defense Instruction" (pdf) they have asked Judge Walton to read to the jurors as part of his instructions at the end of the case.

A defendant is entitled to a "theory of defense" instruction, but there has to be evidence presented during the trial to support it. I don't think Judge Walton will give it exactly as written, but it's revealing in showing where Team Libby is headed.

After a day filled with hot air, with Democrats vehemently crying for up and down votes on nonbinding resolutions to oppose the Bush Iraq Surge, and the GOP desperately trying to avoid going on the record in support of the Bush surge, the very smart columnist E J Dionne learns some correct lessons and some incorrect ones. The correct ones:

In other words: Even if a substantial majority of Congress that includes many Republicans demonstrates a lack of confidence in the Bush-Cheney surge, the administration will feel free to ignore the other elected branch of our government -- and the more recently elected branch (remember November, anyone?) at that.

And the GOP wants avoid getting shackled with Iraq in 2008. This is clear and that seems obvious to me. But what EJ is missing is that this Kabuki will mean nothing in November 2008. But, to be fair, EJ sees this as building up for a reversal of Iraq policy:

The impatience of the administration's critics is entirely understandable. But it would be a shame if impatience got in the way of a sensible long-term strategy to bring America's engagement in this war to as decent an end as possible as quickly as possible -- even if not as quickly as they'd like. The anti-surge resolution is a necessary first step, which is why those who are against a genuine change in our Iraq policy are fighting so hard to stop it.

Dionne is incorrect here. This does NOT lead to a sensible long term strategy to end the war. It is NOT a first step towards that. Russ Feingold is right:

This is not a time to finesse the situation. This is not a time for a slow walk. This almost reminds me a little bit of the way Democrats behaved in October 2002, which was trying to play it safe, trying to use words such as 'well, we're going to vote for this resolution, but what it really means is that the president should go to the UN. That stuff doesn’t fly. And this kind of attempt to go a little bit of the way just to show you're on the other side of the president doesn’t fly either.

One of the grand jurors in the Duke Lacrosse players' alleged sexual assault case says he now has second thoughts. Two of the grand jurors appeared on Good Morning America. They couldn't discuss what happened in the grand jury, so they talked only about their impressions since.

"Knowing what I know now and all that's been broadcast on the news and in media, I think I would have definitely … made a different decision," he said to ABC News.

"I don't think I could have made a decision to go forward with the charges that were put before us. I don't think those charges would have been the proper charges, based on what I know now," he said.

The second grand juror disagreed.

"I don't know for sure whether she was raped, you know, because of everything that … came out," he said. "I'm not sure, to tell you the truth."

It's time for the Tuesday open thread where you pick the topics. Have fun and stay warm. I'll check in later in the day.

Some stuff I'm reading:

• Media Matters challenges Chris Matthews' statements on Hardball yesterday touting Rudy Giuliani. I happened to catch that segment and just shook my head. Thanks to MM for the real facts.

• Judi Nathan Giuliani touts Rudy's testosterone and his loving side (gag reflex inducing) (hat tip Raw Story)

• Ted Haggard says he's completely heterosexual, he never was gay, just acting out.

It's official. Scooter Libby may not testify at his trial. His lawyers filed a brief tonight (pdf) in connection with yet another sealed request for classified materials, trying to convince the court that Libby's memory failure defense -- the part that is based on how busy he was due to the urgent national security matters he was involved in -- should come into evidence even if he doesn't take the stand. They say that making him testify in order to present his memory defense would force him to choose between his 5th Amendment right to remain silent and his 6th Amendment right to counsel.

They state in a footnote that on September 27, 2006, in connection with the fight over classified materials, Team Libby told the court it was "very likely" Libby would testify but did not promise he would. They point out that other courts have ruled that both sides can present circumstantial evidence as to a defendant's state of mind. They argue that Fitz has repeatedly presented circumstantial evidence at trial of Libby's state of mind.

They want to introduce three categories of national security evidence to show Libby was confused or mistaken, but did not intentionally lie:

Embattled San Francisco Mayor Gavin Newsom will undergo alcohol treatment:

Just days after disclosing his affair with a staff member married to one of his top political aides, San Francisco Mayor Gavin Newsom admitted Monday he has a drinking problem and said he would seek treatment for alcohol abuse.

[Background here.]

...."Upon reflection with friends and family this weekend, I have come to the conclusion that I will be a better person without alcohol in my life," he said in the three-paragraph statement. "I take full responsibility for my personal mistakes, and my problems with alcohol are not an excuse for my personal lapses in judgment."

Apparently, there have been prior signs of alcohol-related problems for the Mayor:

Why isn't Patrick Fitzgerald calling WaPo reporter Walter Pincus as a witness in the Scooter Libby trial?

We now know from the grand jury testimony and briefs (pdf) that Scooter Libby was a source for Walter Pincus's June 12, 2003 article on Wilson's trip to Africa. On October 12, 2003, Pincus wrote:

On July 12, two days before Novak’s column, a Post reporter was told by an administration official that the White House had not paid attention to the former ambassador’s CIA-sponsored trip to Niger because it was set up as a boondoggle by his wife, an analyst with the agency working on weapons of mass destruction. Plame’s name was never mentioned and the purpose of the disclosure did not appear to be to generate an article, but rather to undermine Wilson’s report.

Fitz writes in a footnote to his brief filed Sunday,

Defendant testified before the grand jury that he could have been a source for Walter Pincus’s June 12, 2003 article, and that it was during preparation for providing information to Mr. Pincus that the Vice President informed him that former Ambassador Wilson’s wife worked at the CIA. 3/5/04 GJ Tr. at 60-63.

Pincus expanded on what the Administration official told him in this July, 2005 article.

Sex offender registration began as a way to keep track of predators. Eager to appear tough on crime, many state legislators have pushed to expand registry membership to include sex offenders who are unlikely threats. Young adults who have sex with their minor girlfriends or boyfriends exemplify the kind of defendants who pose no threat to the general population, and who do not deserve the stigma of sex offender registration.

A judge who agrees with that reasonable philosophy tried to mete out justice to a 20 year old defendant by staying his felony conviction for 100 years, a creative way to assure that the young man would never have to register. The judge probably knew he’d be reversed – and reversed he was – but the judge at least made a statement that caught the public’s attention.

[Judge] Kirk said Thursday his opinion of the sex registry requirement, because of its lack of discretion, remains unchanged. ... "It is a travesty in my opinion that we are destroying a significant cadre of our young people because the law doesn't discriminate between those that are there because of youthful misadventure or those that are true sex offenders," Kirk said.

Glenn Greenwald links to a remarkable piece by Jeff Goldberg in the New Yorker on the lyingest liar in Washington, DC, Joe Lieberman. While Glenn basically exposes that Joe Lieberman is Marty Peretz's bigot twin:

Joe Lieberman believes, accurately, that he can openly praise Mark Steyn's foreign policy "theories" (embraced just as enthusiastically by the right-wing blogosphere and Marty Peretz) because -- while everyone to the left of The New Republic is deemed to be a fringe, untouchable radical -- there is no such thing as a right-wing pundit too extreme or pernicious to be declared out of the mainstream.

Jeff Goldberg demonstrates, again, what a liar Lieberman is: