Burden of poof

As lawyers, we’re always interested to hear about innovative arguments.  When lawyers from other jurisdictions think up of something deliciously out of this world, something devilishly brilliant that can change the way we regard situations and fact patterns, we get that burn of envy and we shake our heads, (ok, mine) wondering, “why didn’t I think of that?”

Plus,  you never know the potential application of those arguments.  If they’re that good, there’s no telling where else we can use them in the future.

Unfortunately, such was not the case in that lawsuit in Russia against Madonna Louise Ciccone, otherwise known as the Material Girl, when she was sued for exposing Russian youths to what was termed as “homosexual propaganda.”   The suit was filed by a group of Russian activists named the Trade Union of Russian Citizens, who claimed she should pay damages of US$10.7 Million.

Here’s the slew of arguments they tried to foist on the court:

First, they said that her gay loving speech “traumatizes minors.”  Now I wonder what evidence they could have presented to prove this.  Did they strap down kids to a chair and subject them to taped MDNA concerts?  Or did they cull shout-outs and media interviews she granted over the years, splice them and roll them into one, and beam the mishmash into the kids’ rooms while they were sleeping? Or did they play her Like a Prayer music video, her ill-fated Pepsi tie-up, over and over until kingdom came?

Then of course, they had to prove the trauma:  plaintiffs would have to wait for the kids to somehow show the deleterious effects of exposure.  That’s a tough one to prove.  Would they have to have to follow two bunches of kids, the first group, the exposed kids, and the second group, those who have never ever in their lives heard or seen Like A Virgin?  (Now how do they assure the judge that those kids were Madonna-virgins?)

Here’s the second argument which, for a lawyer, might have proven tough to evidence before a Kremlin judge:  the plaintiffs said Madonna’s pro-gay speech would affect Russia’s  birth rate.  Sheesh, how would they be able to ever show hard evidence of this?  The best alternative would probably be to conjure up an “expert” witness, a person who can confidently testify that based on his experience and professional competence, people would stop procreating as soon as they heard Madonna speak.  And say all of this without doubling up in laughter or burning in embarrassment.

Perhaps, the plaintiffs were hoping the judge would find this assertion self-evident.  Something like res ipsa loquitur, or ‘the thing speaks for itself.’  Their logic would flow something like, if Madonna promotes gay rights, more people would become gay, and therefore they would be less likely to want to sleep with the opposite sex, and less sleeping around means less children!

Unfortunately, (or fortunately) courts of law don’t operate like that, and so that one didn’t quite fly.  But this leads to their third argument, actually.   Plaintiffs alleged that Madonna’s support for the gay cause would deprive the country of future soldiers.  (Uh-oh, that’s something they may not have wanted to share with the US military, seeing as they’ve had problems trying to expel gay soldiers from the ranks...and failing.  With the DADT [Don’t ask, don’t tell] policy already rejected by Obama, there are plenty of gay soldiers around, for sure.)

Conversely, plaintiffs should have thought about the US experience first before proferring it to the judge.  All that the judge would have to do would be to look at the American military, and realize that there are a lot of cute gays in uniform.

Plus, what would the evidentiary burden be for plaintiffs?  What would they have to present to the judge?  More gays means more effeminacy is equal to less soldiers?    These were the arguments brought forth by the concerned Russians, but their judge was probably made up of sterner intellectual fiber, and he dismissed the case.  Madonna wins.

Note to Russian plaintiffs:  try the arguments in Uganda, where the death penalty is being mulled for homosexual behavior.  That’s where those arguments might fly.