Lis & the Single Girl: Saying Yes, Than No: Is it Rape?

In this weekly series, FNC Legal Analyst Lis Wiehl offers solutions to the tough problems single gals face.

Have a question? E-mail Lis and check back next week to see if it's been answered!

The High Cost of Beauty and Eyelash Cosmetics

Heard of an eyelash conditioner that increases eyelash growth? If this product existed with no additional side effects, I’m sure of all of us would line up for it! Unfortunately, the story is never so simple.

The U.S. Food and Drugs Administration (FDA) requested U.S. marshals to seize more than 12,600 applicator tubes, with a sales value of approximately $2 million, of a cosmetic called Age Intervention Eyelash, as it may lead to decreased vision and possibly blindness.

Age Intervention Eyelash comes in a .23 oz. mascara-style tube, sold a high price of $160, manufactured by Jan Marini Skin Research, Inc., of San Jose, Calif. The product has been found to contain Bimatoprost, an active ingredient in an FDA approved prescription drug to treat elevated intraocular pressure (elevated pressure inside the eye).

For patients on the prescription drug, using the Age Intervention Eyelash, in addition to the drug, may increase the risk of optic nerve damage, because the extra dose of bimatoprost from the cosmetic may decrease the prescription drug's effectiveness. Thus, Age Intervention Eyelash is harmful particularly for patients receiving treatment on elevated pressure inside the eye. The increased risks of optic nerve damage lead to adverse effects, including macular edema (swelling of the retina) and uveitis (inflammation in the eye), which may also lead to decreased vision and even blindness.

The FDA considers the product “adulterated,” or an unapproved and misbranded drug, because Jan Marini Skin Research, Inc. has promoted the cosmetic to increase eyelash growth instead of it being merely a fashion product. While the company could be held liable for its breach of warranty, gross negligence, and false advertisements, Marini said that her new line of eyelash products, called Age Intervention Eyelash Conditioner, does not contain Bimatoprost. The new product has different labeling and is described by the manufacturer on its Website as a stunning technology that can make the lashes appear "Fuller, Thicker and More Lustrous!"

I can’t speak for you ladies out there, but I still feel a little eerie about the advertisement of the new eyelash products. The FDA recommended consumers consult their physicians if they have experienced any problems they suspect are related to the product's use. It also advised consumers, dermatologists, and estheticians that may still have Age Intervention Eyelash to discontinue using it and discard any remaining products.

On top of that, I strongly recommend any readers using the product to contact your local personal injury lawyer immediately to help you evaluate your legal rights and options.

Bottom Line: Don’t put your eyes at risk any longer! Keep track of when you began developing optic nerve damages because a detailed medical record may help you recover damages against the manufacturers.


Age Intervention Eyelash Product Seized by FDA, May Be Harmful to Eyes

Is it Rape if He Continues Intercourse after You Change Your Mind?

It’s hard to believe how unclear the law is over the question of whether rescinded consent to sex constitutes rape. It turns out that there are very few cases exploring this extremely important issue.

And to make matters worse, different states have taken opposing stances.

Some say that a male commits rape if he continues to have sex with a woman who originally consented but later changed her mind, regardless of whether or not he had already penetrated. Others say that even if she later changes her mind, the male has not committed rape if the woman originally consented, regardless of whether he penetrated her before or after she changed her mind.

In 2003, the California Supreme Court adopted the former position. The case involved an incident from 200 where the so-called teenager, Laura T., was raped at a party by teenager John Z. After they started having intercourse in a bedroom, she tried to resist, telling him several times that she had to go home. John Z., however, ignored her. It turns out that in 1985, a California court held the opposite, that as long as the victim consented at some point, there was no rape.

But exactly one year ago, the Baby v. State of Maryland case ruled that once a male has gained a female’s consent and has begun the act of sex, he can continue until he climaxes, regardless of whether she asks him to stop, and not commit rape. In a very unusual opinion, the Court of Special Appeals of Maryland looked at ancient laws and the early English common law in lieu of practical realities.

My view? No means no — period — end of discussion!


Court says sex after rescinded consent is rape

A Maryland State Court Rules that Women May Not Withdraw Consent After Penetration: The Perils of Relying on History

California's Highest Court Clarifies the Definition of Rape

Who’s Jamming My Cell Phone?

Everywhere you turn — subways, sidewalks, shopping malls — folks are out in the open discussing even the most private of conversations on their cell phones. Annoying? Absolutely, but there’s a difference of opinion on how to deal with this issue.

Jammers, devices that can block cell phone reception, are illegal. But should they be? One side says the devices bring solace to those dealing with rude, loud cell phone talkers. The other side is that this can be a safety hazard. For instance, what if an attacker jammed a victim’s cell phone reception?

Reports have spread that demand for cell phone jammers from overseas exporters is rising, causing concern from both federal regulators and the cell phone industry at large. According to the Times, buyers have included “owners of cafes and hair salons, hoteliers, public speakers, theater operators, bus drivers and, increasingly, commuters on public transportation.”

Internationally, the devices are being used in theaters, churches, houses of government, places of business and anywhere else where people convene and don’t want to hear you blabber away on your cell.

How exactly does the jammer work? The device emits a radio signal that interferes with your cell phone, ending its communication with your cell phone network. The price for a jammer is said to start at $50. According to the Federal Communication Commission, anyone charged with using a cell phone jammer may be fined as much as $11,000 on the first offense, and later on receive up to one year in prison.

My view? These things should stay illegal! I carry a cell phone and got both my children cell phones first and foremost for safety ... so we can call the police if needed (or my kids can get a hold of me.) These people carrying jammers could attack a child and jam their phone. That's just wrong...If the person on the train is being too loud, get up and tell ‘em to quiet down. Actually speak to them. Don't jam their phones!


Cell Phone Jammers

Behind Safe Cell Phone Use

When we were kids, we all loved to dig through our mothers’ wardrobes and play dress up. The high heels, big fancy coats and hats, you name it! Those were the young and innocent playful days. Certainly, role playing can be fun in some situations, but the experience will not be so amusing when you pose as a potential apartment buyer in some of Manhattan’s most expensive neighborhoods so that you can steal from these luxurious homes!

Two women, Jessica Joyner and Jennifer Jones, appeared recently in Manhattan Criminal Court. They’re being charged with grand larceny, possession of stolen property and attempted larceny. The two women wore wigs and designer clothes to present themselves as Upper East Side elites in search of an elegant apartment. For weeks, the police said, they visited open houses in Manhattan organized by real estate agents to show expensive apartments to potential buyers.

One woman would distract the real estate agent during an open house tour while the other would wander off to snatch luggage, jewelry and clothing. The defendants stole about $20,000 worth of items! The haul included luggage made by Coach, Louis Vuitton and Hermès; engagement and wedding rings; a Tiffany alarm clock; a Bang & Olufsen telephone; and a bottle of Veuve Clicquot Champagne.

Mao Yu Lin, an assistant district attorney, said that both women had confessed to the felony and that they were also wanted on theft charges in Bergen County, N.J.; fugitive warrants had even been issued there for the women.

Larceny and theft generally are a matter of state law. In states that have incorporated larceny into a broad theft statute, the punishment for a theft is based largely on the value of the stolen property. For this case in New York, grand larceny is the unlawful taking of property valued at $1,000 or more and conviction can carry a prison sentence of 1 to 4 years. However, this sentence only applies to first offenses. The sentence could be longer for repeat offenses of this same type of crime.

Again ladies, you do not want to be in this position. Dressing up can be fun, but Halloween is long over. Larceny by trick or deception will get you nowhere other than state jails! Certainly, this is not the way you want to be doing your Christmas shopping!


Two Women Accused of Looting Apartments

If I Can’t Say No, That Doesn’t Mean Yes!

Sleepwalking can become a serious and dangerous problem for many people, especially if you could sleepwalk yourself onto the streets! This is quite different from sleepwalking situations at home where you run the risk of knocking over a vase or stubbing your toe into against the leg of a table. Sure, those experiences could be painful once the sleepwalker regains consciousness; but here, we are talking about serious injuries that could happen during your sleepwalk outdoors, such as car accidents, or in this case, rape.

In Cincinnati, a homeless man allegedly raped a 23-year-old college student while she was sleepwalking along a highway near her home. Police received a call from two passing motorists on Interstate 71 that a man was on top of a woman at about 3:30 a.m. on November 8, 2007. During the attack, the woman woke up and fought back, but could not get away. Dexter Ford, 52, was indicted by a grand jury on two charges of rape, attempted rape, and kidnapping. In addition, Ford was charged with felonious assault for the intentional or reckless transmission of disease because he knew he was HIV positive at the time. If convicted on all counts, Ford faces as much as 46 years in prison.

Rape is a felony, defined as having sex with someone without his or her consent. And apparently, Ford needs a lesson on the notion of consent! First of all, consent can be given if, and only if, you are capable of giving consent at the time. Here, the victim was sleepwalking; she was not in a conscious state of mind, and clearly not capable of giving consent. As the Hamilton County prosecutor Seth Tieger said, “the woman didn't consent to sex, and anyone seeing her in her sleepwalking state would have known that something was wrong. It's not like she was carrying on a normal conversation."

Even if Ford could argue that he didn’t know the woman was sleepwalking, and that he didn’t hear her say “no,” that still doesn’t mean she consented to sex. If the woman can’t or didn’t say “no,” that doesn’t mean, “yes” either! Also, it should be clear to any reasonable man that the moment she woke up and fought back, that is a clear sign for Ford to back off.

This requirement of consent extends not only to strangers, but even friends, boyfriends and husbands are still required by law to obtain your permission to engage in a particular sex act. Here, this woman who was in a state of semi-unconsciousness when she walked along the highway. Our system further protects women in other circumstances as well; if the woman is under the age of consent, drunk, under the influence of a drug, or otherwise unable to say “no” to a potential sexual partner, she is not capable of giving consent.

Bottom line: Without the capacity to give consent, all non-voluntary contact with that person is sexual violence, not sex.


Homeless man charged with raping college student out walking in her sleep


The information contained in this Web site feature entitled “LIS ON LAW,” is provided as a service to visitors of, and does not constitute legal advice or establish an attorney client relationship. FOX NEWS NETWORK, LLC makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site feature and its associated sites. Nothing provided herein should be used as a substitute for the advice of your own counsel.

Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. To read the rest of Lis's bio, click here.