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How we can make changes

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  • People may have read http://gendersociety.com/forums/topic/10112/divorcing-and-the-unreasonable-transexual where a sugestion that divorce law may be changed to view transexual people more favourably in cases of divorce, this is done by a judge setting a precedent,  Stare Decisis (Latin, Let the decision stand.] The policy of courts to abide by or adhere to principles established by decisions in earlier cases.)

    The principle of stare decisis was not always applied with uniform strictness. In medieval England, common-law courts looked to earlier cases for guidance, but they could reject those they considered bad law. Courts also placed less than complete reliance on prior decisions because there was a lack of reliable written reports of cases. Official reports of cases heard in various courts began to appear in the United States in the early 1800s, but semiofficial reports were not produced in England until 1865. When published reports became available, lawyers and judges finally had direct access to cases and could more accurately interpret prior decisions, upholding those previously ruled upon, applying the same ideals to similar cases.   Case law precedent.

    Nevertheless, the principle of stare decisis has always been tempered with a conviction that prior decisions must comport with notions of good reason or they can be overruled by the highest court in the jurisdiction, The concept of precedent, or Stare Decisis, means to follow or adhere to previously decided cases in judging the case at bar. It means that appellate case law should be considered as binding upon lower courts.

     

    The option of Matter of first impression, to apply or make a ruling of precedent, case law. (Legal principles enunciated and embodied in judicial decisions that are derived from the application of particular areas of law to the facts of individual cases). reported decisions of appeals courts and other courts which make new interpretations of the law and, therefore, can be cited as precedents. These interpretations are distinguished from "statutory law" which is the statutes and codes (laws) enacted by legislative bodies, "regulatory law" which is regulations required by agencies based on statutes, and in some states, the Common Law, which is the generally accepted law carried down from England. The rulings in trials and hearings which are not appealed and not reported are not case law and, therefore, not precedent or new interpretations. Law students principally study case law to understand the application of law to facts and learn the courts' subsequent interpretations of statutes.

    First impression (known as primae impressionis in Latin) is a legal case in which there is no binding authority on the matter presented. Such a case can set forth a completely original issue of law for decision by the courts, which will then set a precedent for similar cases if a judge so rules..

    Ratio decidendi (Latin plural rationes decidendi) is a Latin phrase meaning "the reason" or "the rationale for the decision". The ratio decidendi is "the point in a case that determines the judgment" or "the principle that the case establishes"

    In other words, ratio decidendi is a legal rule derived from, and consistent with, those parts of legal reasoning within a judgment on which the outcome of the case depends,this is done by way of:-

    Rules of Inference.
    Conclusions based on evidence given on what is already known and proven or can be reasonably implied from all known facts.  

     

     

    Cristine Jennifer Shye.  B/L.  B/Acc
    This post was edited by Cristine Jennifer Shye. BL at January 14, 2016 10:45 PM GMT
      January 12, 2016 10:12 PM GMT
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  • So how are "bad" precedents changed?
      January 17, 2016 8:57 PM GMT
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  • Thankyou for posting your thoughts.

     

    Precredents (case law) a Judges ruling where an existing law, is unclear, to make inclusions, Judges interpret the laws. very rarely is a bad or contentious precedent set, if there was it could be appealed in a higher court on appeal, with a panel of judges repealing the ruling or accepting it, as a final move it could be reffered to the house of lords.

    A typical case law precedent was in the case of a post op trasexual rape, rape is none gender specific,   The defence claimed that as the vagina was a constructed vagina and did not meet the clinical description and reproductive function of a natal females vagina, then it could not be classed as rape,

    R versus John Matthews
    The ruling which confirmed that vaginal rape of a ranssexual woman may be prosecuted as rape
    October 1996
    This important and under-reported ruling confirmed that non-consentual penile penetration of
    the surgically-constructed vagina of a transsexual woman can, in law, be rape if the other ingredients of the offence are satisfied.
    In this case, the defendant was acquitted, but an important precedent was set.  It allows the alleged assailant of a transsexual woman to be charged with the more serious offence of rape, rather than the lesser charge of sexual assault, which carries lighter penalties.

       read the transcript.

    http://www.pfc.org.uk/caselaw/R%20versus%20John%20Matthews.pdf

     

    Reading Crown Court
    RCC NO. T960397
    Artillery House Tilehurst Road Reading, Berks
    Monday, 28th October, 1996
    Before: MR JUSTICE HOOPER
    Regina -v- John Matthews
    Counsels names not supplied
    Ruling
    Monday, 28th October, 1996
    MR. JUSTICE HOOPER: I now give my reasons for the ruling which I made at the outset of the trial.

    Count One of the indictment charges the defendant with having raped “C” on the 25th of December 1995.
    Count Two charges him with indecent assault on a male person, the particulars of the offence being that on the same day he indecently assaulted
    “C”, a male person.
    The following admissions have been made:
    “The complainant was born a biological male on the 18th of November 1958. On the 24th of November 1994 the complainant underwent gender reassignment surgery, which surgery produced a well-constructed, cosmetically acceptable artificial vagina, to enable her to live in the female role.
    There are anatomical differences between the artificial and natural vagina, namely:
    1.The artificial vagina is made from colon, not from vaginal tissue.
    2.Being made from colon, the artificial vagina is lined by columnar epithelium, whereas a natural vagina is lined by squamous epithelium.
    3.During sexual arousal the lining of the natural vagina undergoes a sweating-like reaction, known as transudation, the result of which is the production of
    lubricating fluid. An artificial vagina may produce mucus from the glands in
    the columnar epithelium, but his is a different process from transudation.
    4.The natural vagina terminates at the cervix at its inner end, whereas the artificial vagina has no cervix.
    5.At or just within the opening of a natural vagina are the two openings of the Bartholin’s Glands (which produce a small quantity of a highly lubricious
    fluid); the artificial vagina does not have these o
    penings.
    6.A natural vagina opens on the vestibule of the vulva, between the labia minora. “C” does not have a labia minora.
    7.A natural vagina has the physiological capacity forenormous expansion, such a during childbirth. An artificial vagina does not
    have this capacity. A natural vagina has a normal female clitoris whichconsists of some erodible tissue and is covered with sensitive glands and a h
    ood of tissue. The artificial vagina has a clitoris constructed of penile tissue.

    As to the words in the second paragraph of those admissions, “in the female role”, counsel for the prosecution, Mr. Charles Byers, asked me to assume for the purposes of the ruling that the complainant had had the artificial vagina constructed to enable her to have sexual intercourse. I make that assumption in fact. That assumption was later supported by the evidence.
    The authorities establish that “C” is, for legal purposes, a male in those circumstances. In
    those circumstances no submission is made about Count Two.
    As to Count One, it is submitted by Mr. Peter Cooper, Queen’s Counsel for the defendant that, given the admitted facts, the defendant cannot as a matter of law be convicted of rape.    He submits that the non-consentual penile penetration of the artificial vagina of a biological male cannot, in law, be rape.
    Section 1 of the Sexual Offences Act 1956, as substituted by the Criminal Justice and Public Order Act 1994, provides as follows:


    1“It is an offence for a man to commit a rape; to rape a woman or another man.
    2.A man commits rape if (a), he has sexual intercourse with a person, whether vaginal or anal, who C at the time of the intercourse does not consent to it, and (b) at the time he knows the person does not consent to the intercourse or is reckless as to whether that person consents to it.”
    Mr. Cooper submits first that penile penetration of the “vagina” of a biological male does not constitute “sexual intercourse” within the meaning of Section 1.
    To resolve that issue it is necessary to examine the Sexual Offences Act as originally drafted
    and as amended by the Sexual Offences (Amendment) Act 1976. Section 1 of the 1956 Act provided: “It is a felony for a man to rape a woman. Rape required vaginal penetration of a woman. Anal penetration could not constitute rape. See theQueen v. Gaston (1981) 73 Criminal Appeal Reports 164 (Court of Appeal).
    Throughout the act there are references to sexual intercourse (for example, with a girl under 13 or with a defective.) Section 12(1) provided: “It is a felony for a person to commit buggery with another person or with an animal. Section 44, which remains unamended today, provides:  “Where on the trial of any offence under this act, it is necessary to prove sexual intercourse, whether natural or unnatural. It shall not be necessary to prove the completion of the
    intercourse by the emission of seed. That the intercourse shall be deemed complete upon proof of penetration only.”   The word “natural” in that section was being used to describe heterosexual intercourse. The word “unnatural” to describe heterosexual and homosexual anal intercourse and bestiality.
    See Gaston at 167. Bestiality requires vaginal or anal intercourse with an animal or by an animal. See: R.v. Bourne (1952) 36 Criminal Appeal
    Reports 125. The 1976 Act defined the offence of rape. Included within the definition were to be found the words:
    “A man commits rape if (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it”. Section 7(2) of the 1970 Act provided:
    “References to sexual intercourse shall be construed in accordance with Section 44 of the Sexual Offences Act 1956, so far as it relates to natural intercourse. (Under which such intercourse is deemed complete on proof of penetration only)”.
    By virtue of paragraph 35 (4) Schedule 10 of the Criminal Justice and Public Order Act 1994, these words “shall be omitted” from Section 7(2).
    In my judgment there is no reason to limit the expression “sexual intercourse” in the way being submitted by Mr. Cooper. “Sexual intercourse”means penile penetration of the vagina or anus. The fact that the vagina might be that of a biological male does not prevent it from being “sexual intercourse”.
    He further submits that the words “vaginal intercourse” in Section 1 does not include penetration of a male’s artificial vagina. If a woman has a natural vagina which is anatomically irregular as a result of a birth defect, an operation or an accident, it would in my judgment be rape to penetrate it. (See S.v.S.
    (otherwise W) (No 2) [1962] All E.R. 55, at page 63).


    If a woman had an artificial vagina constructed because of a birth defect or an accident, could it be rape to penetrate it? I have been referred to no authority directly on point.
    In S.v.S, as Mr. Justice Ormerod said in Corbett v Corbett, [1970] 2 All E.R 33, at 49: “There are passages in the judgment which seemed togo as far as holding that a [woman], born without a vagina at all, could be capable of consummating a marriage by the construction of an entirely artificial one”. In Corbett, Mr. Justice Ormerod said that “he was prepared to hold that” a person with a completely artificial vagina would be incapable of consummating a marriage. In that case the respondent to a petition for a decree of nullity, was born a biological male who, like the complainant, had undergone gender reassignment surgery involving the construction of an artificial vagina. The decree was granted on the basis that the respondent was a male and, in any event, incapable of consummating the marriage because of the artificial vagina.


    In my judgment, whether or not a woman with an artificial vagina can consummate a marriage is of little help in resolving the issue whether penetration of it would constitute rape.
    In my judgment, it could. I turn then to the question whether penetration of a male’s artificial vagina can constitute rape in the circumstances reflected by the admissions. Section 1 uses the word “person”. The words “whether vaginal or anal” relate to the intecourse. Indeed, the section might more happily read:
    “A man commits rape if (a) he has sexual intercourse (whether vaginal or anal) with a person”.
    [Passage omitted.]
    Mr. Byers submits that the wording of the section is clear and that it includes penile penetration of a male, of a biological male’s artificial vagina. I accept that submission, notwithstanding that during the use of the offence in rape, in those circumstances it was apparently not-a matter which was mentioned during the debates other than this amendment. Furthermore, rape being the non-consensual penile penetration of either of the two intimate orifices, I see no reason why, as a matter of public policy, that the offence is not committed.
    In conclusion, therefore, in my judgment, penile penetration of a male’s biological artificial vagina can, in law, constitute rape. There is no dispute that, having resolved the matter in this way, I should direct the jury that, as a matter of law, the penile penetration of this complainant’s vagina is rape if the other ingredients of the offence are satisfied.

     

    Remember this was before the advent of the GRA (Gender Recognition Act  2004)

     

     

    Cristine Jennifer Shye.  B/L.  B/Acc
    This post was edited by Cristine Jennifer Shye. BL at January 18, 2016 9:02 PM GMT
      January 18, 2016 12:00 PM GMT
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  • It never surprises me the lengths that 'lawyers' will go to attempt to swing how their client has not committed a crime when presented with unequivical proof that they indeed did commit a crime.

     

    Thank you for your conciese explanation again Cris

    Not to borrow the strength of another, nor to rely on one's own strength; to cut off past and future thoughts, and not to live within the everyday mind... then the Great Way is right before your eyes. - Yamamoto Tsunetomo
      January 18, 2016 8:30 PM GMT
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  • Perhaps it's time to log off and game for a bit.   I thought I read "Raging Crown Court" up above.   I'll come back and try again another day.   :-P

    "A live lived in fear is a life half-lived." - Native American proverb. "Inside every man is a woman who was drowned in testosterone before birth". - Wendy Jeanette Larsen "It is better to be hated for what you are than loved for what you're not." - Andre Gide (French writer)
      January 19, 2016 10:50 AM GMT
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  • Sorry, I used "bad" not to imply erroneous or incorrect, but rather outdated or unhelpful precedents which have outlived their usefulness / appropriateness as societal norms have evolved.
      January 19, 2016 2:01 PM GMT
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  • Precedents , Case laws are used by Judges to update, correct outdated laws, where in a Judges opion by way of logic and reason need updating, changing, very often this is done by legislation in the  commons, making new laws that superceed existing laws or making ammendments to present statutes   then passed to the house of lords for ratification, in Parliament, typical example of the latter would be the changing of the marriage act 2013 and then ammended in 2015, giving trans people the right of continuance in a lawful marriage without annulment or divorce, if both parties to the marriage were in agreement.                                             

    Cristine Jennifer Shye.  B/L.  B/Acc
      January 19, 2016 3:20 PM GMT
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  • Another stupid example a law enacted in Victorian times.

    Have you heard that story about London Hackney Carriages (taxis) being required to keep a bale of hay in the boot to feed the horses?  Also the vehicle has to be tethered at a taxi rank, and the council have to supply a water trough at said ranks (that could be fun on a Saturday night!). Sometimes you will hear it said that this law wasn’t repealed until 1976!

    As quaint and quirky as that sounds, it’s all an urban myth, I’m afraid.

    This misconception probably comes about because of Section 51 of the London Hackney Carriage Act 1831, which made it an offence, punishable by a 20 shilling fine, for the owner or driver of a hackney carriage (or any one else) to:

    “feed the horses of or belonging to any hackney carriage in any street, road or common passage, save only with corn out of a bag, or with hay which he shall hold or deliver with his hands”.

    So the intention was to prevent messy feeding and keep the London streets clean. It simply required that when a horse was fed in a public place, that it was done with either a bag of corn or with hay out of the hands, i.e. no animal feed on the streets.

    In any case, this offence was repealed by the Statute Law (Repeals) Act 1976. It took that long before someone noticed it???

    Oh well, another urban myth shattered!

    Cristine Jennifer Shye.  B/L.  B/Acc
    This post was edited by Cristine Jennifer Shye. BL at January 19, 2016 4:40 PM GMT
      January 19, 2016 4:34 PM GMT
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  • Cristine, Shye said:

    Another stupid example a law enacted in Victorian times.

    Have you heard that story about London Hackney Carriages (taxis) being required to keep a bale of hay in the boot to feed the horses?  Also the vehicle has to be tethered at a taxi rank, and the council have to supply a water trough at said ranks (that could be fun on a Saturday night!). Sometimes you will hear it said that this law wasn’t repealed until 1976!

    As quaint and quirky as that sounds, it’s all an urban myth, I’m afraid.

    This misconception probably comes about because of Section 51 of the London Hackney Carriage Act 1831, which made it an offence, punishable by a 20 shilling fine, for the owner or driver of a hackney carriage (or any one else) to:

    “feed the horses of or belonging to any hackney carriage in any street, road or common passage, save only with corn out of a bag, or with hay which he shall hold or deliver with his hands”.

    So the intention was to prevent messy feeding and keep the London streets clean. It simply required that when a horse was fed in a public place, that it was done with either a bag of corn or with hay out of the hands, i.e. no animal feed on the streets.

    In any case, this offence was repealed by the Statute Law (Repeals) Act 1976. It took that long before someone noticed it???

    Oh well, another urban myth shattered!

    Don't forget there are still others that included being able to hunt & shoot a Welshman with a Longbow & arrow only on a sunday mind you

     

    Not to borrow the strength of another, nor to rely on one's own strength; to cut off past and future thoughts, and not to live within the everyday mind... then the Great Way is right before your eyes. - Yamamoto Tsunetomo
      February 10, 2016 9:36 PM GMT
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  • cWell Crissie there are some laws that definately need changing but some never will be. The law I see needs changing for one is forcing a consenting married couple to divorce when it comes out that one of them is trans and they want to continue with the marriage.

    The thread about the unreasonable transexual is a broken down marriage , it is obvious it is beyond repair.

    If the wife had decided to want to continue with the marriage as some do then that law needs changing. Forcing a couple who wish to remain married to divorce then re marry is just a waste of time paper and money , plus the human heartache that comes with it is just plain stupid.

    Easy answer just change the name on the marriage certificate. Whoops! I said easy but this law is not meant to make life easy is it?.

    Take care x

    This post was edited by Former Member at February 12, 2016 1:27 PM GMT
      February 12, 2016 1:25 PM GMT
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  • Hiya Julia thanks, I have already covered the aspect of unwanted divorce in another thread, there is now in place a form for mutual continument of a marriage,  Upon issue if the GRC an ammendment to marriage records is automatically made, to that of a legal same sex marriage, (not to be confused with civil partnership) 

     

    http://gendersociety.com/forums/topic/9957/temp-grc-divorce

    Cristine Jennifer Shye.  B/L.  B/Acc
      February 12, 2016 1:38 PM GMT
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  • Thank you Crissie. There is not much that gets past me here but I missed that post some how. I am pleased that someone has finally come to their senses and realised it was a pointless and painful exersize and waste of time.

    Thank you for all I have learnt from you over the years.

    Julia xx

      February 12, 2016 1:50 PM GMT
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  • Hiya Crissie.

    I am no good on the law side of things all I know is right from wrong but , there are a lot things people can do to make changes if they put their minds to it , that in effect could help change current and future laws.

    To me this is all about understanding and education. Pevention of future generations falling into the trap of marriage before understanding their condition and the harm it can cause to all concerned.

    I do all I can in my area to help others understand that being transexual is not the individuals fault. If others could just think about ways to do the same even it it made a small difference it is better than nothing.

    At a meeting with my local police force I was asked how can we do this? I responded with schools. Not just the teachers but to pupils too. G.I.D needs to be talked about not sweept under the carpet. They talk about the problems faced by gay people or other minorities but we are to far behind.

    People like Caitlyn Jenner have not helped matters. How the hell can any young transgender person look to someone like that for inspiration?. Living life in a celebrity bubble is not real life. Having professional make up artists to hand anytime of day and access to huge amounts of cash for cosmetic surgery is just a farce.

    We need ordinary everyday people with ordinary everyday lives to get the message out. People who have experienced real life. Any of us can do it if we choose but if we don't then things will stay the same.

    Years ago you inspired me. You make a difference and you inspired me to make a difference. I was told by my Local Police and Crime Commissioner that I would make a good Police Community Support Officer , I found that funny but he was serious. It will not happen for personal reasons but if I had been told that 20 years ago I would have jumped at the chance , because I know it would have helped me make more of a difference.

    I am really so so sorry but I have no other answers that I can think of right now. Please never ever give up on what you do though. You made a difference to my life so you must be making a difference to others lives too even if they do not tell you.

    Take care and thank you for everything.

     

    Julia x

    This post was edited by Former Member at February 20, 2016 8:50 AM GMT
      February 18, 2016 5:41 PM GMT
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  • Thanks to all who have contributed to the above. Please correct me if I am wrong,but the principle of stare decisis, holds little validity in Scotland, but in England, It holds less and less strength in the outcome of a case, compared what it did before. And, in my opinion, that is the way it should be.  Sometimes , cases are decided not on the letter of the law, but upon the social mores and expectations expedient at the time the case was heard.  What was right in1066 was NOT probably right in 1996!

     In 1966, the UK House of Lords issued the Practice Statement which stated that the House of Lords would depart from precedent in certain cases where a rigid application of the law would lead to injustice and would restrict the proper development of the law.

    I hope it has.

    There is an old saw, is there not - "Circumstances alter cases."

    Crissy, who I am I to argue. Thank you for always being there to keep us up to date on how we may engage with the law.  If I was wearing a hat, I take it of to you for tour work, care and concern.

     

    Big Hugg.

     

    Amanda

     

     

    This post was edited by Amanda Bruce at March 6, 2016 3:04 PM GMT
      March 6, 2016 3:00 PM GMT
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  • Amanda 'Sometimes , cases are decided not on the letter of the law, but upon the social mores and expectations expedient at the time thecase was heard.' 

    Conclusions based on evidence given on what is already known and proven or can be reasonably implied from all known facts.

    Cases that have laws clarified or changed under Stare decisis are normally refered to the House of lords with a leave to appeal period, if the appeal is not taken up for a ratification or repeal, the Judges ruling stands.   It is essential in most civilised law systems, to make laws fair, balanced and clear.  politicians put forward laws, and quite often get them wrong, it is up to a none political judges to interpret the laws an exact changes where mistakes errors or omission have been made, take the above case, probably an oversight, who would have ever thought a defence lawyer would state it's not a real vagina, so it cannot be classed as rape, the GRA was drafted by proffessors and doctors of law, parliament only discussed the proposal, the house of lords ruled out and exempted the church establishments from discrimination and passed the submissions into law. now its up to judges to clarify and change anything that is unfair or not reflective of good practice.

     

     

     

     

    Cristine Jennifer Shye.  B/L.  B/Acc
    This post was edited by Cristine Jennifer Shye. BL at March 6, 2016 4:53 PM GMT
      March 6, 2016 3:13 PM GMT
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  • Quite often????  Usualyy, because they are out of touch with what is happening to the ordinary folks.  Snouts in the troughs.  Look at corporate law - who is it designed to protect?  Not the little girwho is working her ass of to make a career in the legal profession.

     

    NOT on your life.  It is for the big corporations who wiggle thier way out of paying tax.  Billions of pounds.  But folk like us - a couple of thousands?  The would pursue us to the ends of the earth!

      March 6, 2016 3:18 PM GMT
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  • Amanda, corporate law, is erm, ratified and made up my those with power and MONEY, not my forte, but a typical example is offshore banking and handling companies, not illegal, but morally wrong, quote david Cameron, but seems his father used the process and Cameron hinself benifited from it personally. as used by a world wide chain of coffee shops, google etc, who actually employ thousands of British workers, who pay tax on their earnings and the companies registered as off shore companines still pay VAT for money paid for into the companines for the services provided, sounds like calling  coffee pot and kettle black,    starbucks pay to IRCE 40 pence for every cup of coffee sold over the counter.   Cameron and his cronies probably claim those coffee's on their expense accounts.

    Cristine Jennifer Shye.  B/L.  B/Acc
      May 7, 2016 2:46 PM BST
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  • You can be sure of it - and in some cases 'non receipted) coffees too!

     

      May 8, 2016 8:52 AM BST
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