>> all of our money's being redistributed to washington. it's a boomtown. there is no evidence of the economic collapse in our nation's capitol. in fact, i think the zip codes around washington happen to be now in the top five wealthiest zip codes in the country. stand toss reason that's where all the money is. that's where it goes to be redistributed. that's where the people get their mitts on it. they don't have the slightest clue. look at obama. he goes off to hawaii. what is it a trip, it's $4 million on air force one. not to mention what it's costing us to rent his home. you don't have the slightest idea. obama couldn't pay for 1/ 1//100th of the lifestyle on his own, never. he couldn't do t. but he's living it. >> allen west is here. good evening, sir.

>> the president right now at this minute is in hawaii, playing golf. what message does that send to the american people? >> well, one of the things that you learn in the military is that leadership is about setting an example. when you look at the suffering that is going on down in main street, there is a big chasm, a huge divide between washington, d.c. and the rest of this country. what is so important for economic growth in the united states of america is capital, is people having the money in their pockets to be able to invest, innovation and the growth of small businesses and other businesses and corporations. but what you see happening right now is a redistribution of that wealth through taxation. when you look at the affordable care act and the fact that you are going to have capital gains taxes and dividend taxes part of

that, health savings accounts and flexible spending accounts, being taxed largely. when have you such things as real estate and financial transaction tax and medical expenses all of a sudden, taxed. that's on top what you have are already seeing with the affordable care act. you can't go above 50 employees or you go into a different category. what we see right now, greta, is the tax code used as a punitive measure to grow washington, d.c., to grow bigger government and redistribute wealth, based upon their ideological beliefs. >> one of the biggest expenses in the federal government does include some of our more impoverished neighborhoods in the country, in the urban areas. and in the last four, six, eight years, has anything been done, not just -- not just to sort of put money there on the table, but to actually empower and get people out of poverty and turn this horrible cycle around of

poverty to poverty. has anything been done? has anyone paid attention to them? >> i don't think anyone is paying attention. i think you see the contrast from moving away from an opportunity society to a dependency society. the late great jack kemp and art laver that talked about urban economic empowerment zones to stimulate economic growth because we will not have a strong economy unless we take care of the smallest or the lesser of these communities. >> how in good conscience -- let's take the fiscal cliff bill, for instance, how do members of congress -- and the president signed that bill in sort of -- good faith, knowing that people in my home town with small businesses, they don't really get much out of it, but you get perks for goldman sachs and hollywood gets a good deal, all of these special interests and they sell it to us as this

great, grand thing they have done, when they have given their buddies little perks? >> once again, i think that's the separation between washington, d.c. and the people of the united states of america. when you look at that fiscal cliff bill that i voted no against, and i was glad that that was my last vote because i think it sent a very principled message. 41 -- the ratio of 41-1 to tax hikes and spending cuts. you and i have well talked about this, 200 to 300 billion dollars in duplicative programs. we have not done anything about that -- >> why not, though? why don't they care? it seems indecent -- i take it all the way to the white house, all the way down throughout the federal government, where is the sense of decency or common sense you? can't keep looking the other way on waste and fraud. you can't continue to keep giving your buddies the deals and really denying the american people who put nuoffice the

relief they need or the help to be left alone. >> you are absolutely right. i mean, there are things we should be doing to take care of the american people. and it is principled pragmatism. when the president says we are not going to be atadding anything to the deficit, well, we know, that is not a truism. the fiscal cliff will add $4 trillion. when he says he won't raise taxes on the median family, he is doing that. their wages have decreased 4%, $2,000. we are not talking about the incredible increase of gasoline and food commodity prices because we are printing so much money. it is -- it is really unconscionable what is going on in washington, d.c. but now vian opportunity to work against those type of policies. >> you know, it's interesting. the president's approval realityings have started to decline. congress is at an all-time low. nobody seems to like the federal employees-- the elected officials and they seem to be

doing a lousy job when they do the work. they sat for 18 months and didn't do anything for the fiscal cliff until the last minute -- >> however, the president -- however the president signed an executive order that lifted the ban on the freeze on federal government -- >> why did he do that? why does he do that? >> i guess it's a scratching my back kind of thing in washington, d.c. >> >> why isn't there a conscience? the federal employees have a great job. a lot of people don't have jobs at all. those in the federal government -- it may not be perfect, but there are jobs. i can't understand why they get their pay freeze lifted and it doesn't -- it seems to be -- it doesn't seem to cause much stir. people don't think that might not being a good ideas and almost in some instances, indecent to the many americans who don't get this? >> you are absolutely right. there is an incredible disparity between that public sector compensation and the private sector compensation. we continue to see the public

sector compensation, when you include the benefits, it is growing. you know, when i think about those men and women in the military, those are the people that we need to absolutely be taking care of. those who are out there giving their last full measure of devotion. but there are some places in washington, d.c. where some of these agencies and bureaucracies where we need to ask the question: are they meeting their mission? are they meeting their intent? what are they doing for the american people? i think people should walk down the hallways and go in cubicle by cubicle and ask people, what are you doing for the american people, this moment this, day? >> thank you. before i let you go, any new plans? i know you are no longener office. what's the plan? >> well, i have plenty of good plans. greta, you know, i will be out there with my voice. don't worry, i will be around. i will be here for you to call upon as well. >> congressman, thank you, sir. >> always a pleasure. thank you. >> even former burglars are jumping into the fray over a newspaper publishing a map of

gun owners. the ex-crooks calling the map gold. it started when the journal news put out an interactive map, locating gun owners in new york city suburbs. last night right here "on the record," a new york senator told us why this must not be published. >> the journal news created an interactive map, within 30 seconds, offenders can be on the doorstep of these individuals. so we have introduced legislation with bipartisan support. this isn't a second amendment issue, necessarily. vigun control advocate, just as upset as second amendment advocates. we have to pass legislation to make sure that this information, while publicly accessible, cannot be dispursed in the way the journal news did. >> why is the interactive map making life easier for burglars? bob portman spent 8 years in prison for armed robbery and is now a security consultant. nice to see you.

>> how are you? >> i'm very well. why do you think this interactive map, locating the different gun owners, why is that gold for burglars? >> well, because one of the things burglars look for when they go into a house is guns. it is so easy to sell guns and make cash, they always look for them. now that this interactive map is up and the issue is such a strong issue, every criminal in those two counties and the surrounding area is aware of it. they are going to be checking out this map. they will be casing the neighborhood. and there is a couple of ways to find out if a homeowners are home. so you are going to see in the next few weeks several burglars or more occur in this area. here's what's going to happen, greta. when they get into a house and steal the guns, the homeowner's going to call the police and report a burglary. of course, since the guns are registered, the police will have the serial numbers. then down the road, maybe a week, two weeks, three weeks or a month, a handgun will be used in an armed robbery and maybe a

clerk or an innocent bystander is killed. you are an attorney, you can probably see where i am going with this. so what's going to happen is the surviving members of the victims are going to contact an attorney. and they are going to see about putting together a lawsuit alleging negligence on the part of the homeon owner and then there will be a wrongful death issue -- >> let me stop you there. first of all, if someone breaks into your house, that's pretty much going to protect frucivil liability there. but let me back up a second. if i were a burglar -- and i haven't been yet-- the last thing i would want to do is break do into a house with a gun because i would be afraid the gun would be used against me. i would prefer to break into a house that doesn't have a gun. secondly, i wouldn't be so interested in actually stealing a gun because as you properly noted, there are serial numbers, when guto pawn it or sell it, the gun's going to be traced right back to you. if you want to buy one on the

street, they are readily available. i would rather go for the jewelry. to get rid of and i would rather go into a home where there isn't a gun because i don't want to run the risk of running into the homeowner. >> every home i have broken into, live on tv, there are always guns, we do take jewelry, we take laptops, that facilitates, financial theft. we take prescription drugs, anything of value that's laying around. guns are a mairnt priority because they are easy to turn. you can take an $800 handgun and sell it for $400. you can grind down the cereal number. a good forensics lab can pull that up. the gangsters are always looking for guns. they want any kind of gun they can get their hands on. so guns are a big priority in a burglary. >> in an odd way, when i practiced law, i had a lot of clients, accused of burglary and

other related crimes. my clients were not afraid of guns and finding them in the home, they were afraid of dogs. it's the yappers. it was the dogs that seemed that the burglar would move to the next house. i thought the dogs were a good form of defense. do you agree or not? >> i don't agree. a yapping dog is usually a little dog -- >> they are terrified of dogs. my clients were terrified of dogs, for reasons i never know. absolutely terrified of dogs. >> i am not afraid of dogs. i know how to handle dogs. there are ways to take them out, period. as far as a homeowner being home, like i said, there is a way to find out if a homeowner's home or not. it doesn't take an act of einstein. it's easy. you just make a phone call. most burglars -- most burglars know how to find out if a homeowner's home. they know what to look for when they've go casing a neighborhood.

burglars -- >> with na-- >> burglaries -- >> i gotta go, bob. i gotta go, bob. the debate will go on. there are lots of ideas and conflicting thoughts on all of these topics. bob, thank you. >> you are quite welcome. >> while some new york lawmakers are trying to make gun owners' information private, a connecticut lawmaker is trying to do just the opposite. the names and addresses of gun owners in connecticut are confidential. but all that might be about to change. why? hartford reporter john lender is here. why might that change? >> reporter: steve dargan, in the legislature has introduced a legislative session that opens next wednesday, and he's brought in a bill to... make available under the freedom of information act, 170,000 gun -- handgun permit holders. >> why would he want to do that?

obviously, that's very disturbing to a number of people who own guns in new york? so why does he want to do that? >> there has been a lot of reaction, of course, to the tragedy in newtown. and he says that there have been people who want to have a discussion, people who -- there are people who want to know where the guns are in their neighborhood. so he says, this is an open society. you can find out where -- what property a person owns, what kind of car he drives, if they're licensed to drive, things like that. he says, this is like that. the gun owners and, you know, the sportsman coalition, their advocates disagree and say, as you were talking about earlier, that this kind of information being out becomes a road map for criminals to know -- where there are guns to steal, or as some people put it, soft targets,

suppose there is also auns. little bit for many people, an exercise of a constitutional right and also the privacy to be able to exercise that right, you know, having a gun in their home. because i mean, across the spectrum, people have very different views about this. i am curious though, why in 1994, in connecticut, was a law passed to make all of that information private? >> it was a combination of things. actually, one of those sportsmans coalition groups had f.o.i.'d eye lotted of names to increase the member help and a mailing list. at the same time, there were other factors, there were gun control people who wanted to tighten restrictions on -- on former felons getting ahold of guns and in the give and take thafer, as i understand it, they -- there was a reaction against the release of these

names under the freedom of information act that had arisen from the efforts of this sports coalition group, newspaper published some of the names. as a compromise, the people who wanted to tighten the gun control law gave up on the -- the disclosure. >> you know, it's interesting how the whole idea of privacy has, you know, the different thought now in connecticut, at least by some who are pushing the new legislation, how a law, you know, in almost 20 years, there is such a different view by some. i am curious, what will happen? is it predicted that it will pass in connecticut? >> it would be pretty tough. first of all, with the freedom of information, the whole trend is to put more restrictions on information, not just about this kind of thing. but that would buck the trend. i mean, just the reaction to a story we published today, there was a huge negative reaction, actually, i talked with steve dargan, who introduced the bill.

he said in 30 years of politics, he had never had a day like this. he had 60 phone calls on his home phone message. and -- whatever happens, it is going to be after a real pitched battle. i mean, one of the arguments that the gun owners -- one of their -- a group called -- a handgun rights group... said that, you know, yes there are perms for 170,000 handguns, but in connecticut, you don't need a permit for rifles. so what -- what they say is, you know, there are probably more rifles than handguns. so publishing the list of handgun owners wouldn't tell -- wouldn't serve the purpose that is intended anyway because you are not going to know who else owns guns. >> jon, thank you very much. i gotta go. thank you.

today, former representative gabrielle giffords visiting newtown, connecticut. she and former restaurant husband, mark kelley, meeting with the families of the school victims. 3 weeks ago today, adam lanza viciously opened fire inside sandy hook elementary cool, gunning down defenseless children and adults. nearly 2 years ago, representative giffords was shot in the head in a mass shooting in tucson, arizona. she has become a gun control advocate. straight ahead, 19,000 people missing in massachusetts. you heard right. who are all of these missing people? why are they costing taxpayers millions of dollars? that shocking story is next. foreign tourists flocking to maternity holeho teles in california. what are maternity hotels hoteld why are women staying there until they give birth? can a judge order women not to have more children? is that even legal?

don't miss what our legal panel has to say. people really love snapshot from progressive, but don't just listen to me. listen to these happy progressive customers. i plugged in snapshot, and 30 days later, i was saving big on car insurance. with snapshot, i kn what i could save before i switched to progressive. the better i drive, the more i save. i wi our company had something this cool. you're not filming this, are you? aw! camera shy. snapshot from progressive. test-drive snapshot before you switch. visit progressive.com today.

>> 19,000 people in massachusetts vanish all of them welfare recipients at one time and state officials add midding they can't find them. and it gets worse, the missing

recipients are getting 90 million a year in benefits, that's taxpayer money. the governor patrick trying to downplay the mess. >> not all of those people are still on the the roles. many, if not most people, receive their benefits electronically not by mail, but for the 4% of mailings that were returned, you bet your life we're going to scrub through them and make sure that the information that we have is up-to-date. >> the 4%, 19,000 people is enough to fill the boston gardens, that's a lot of people that they don't know where they are. >> it's a lot of people, not all of whom do you or i know are actually on the welfare. >> but isn't that the-- >> so how did massachusetts lose track of all of these people and where is all of that taxpayer money really going? republican massachusetts state representative shauna o'connell joins us and is the governor correct that not all of those people, 19,000, are actually receiving welfare? what can you tell me about how many people are missing and how many of those missing are believed to be getting welfare

payments and perhaps incorrectly? >> well, this is information that we don't have yet, greta, that we should already have. they've known about this for many, many months now and it is consistent with the administration and the department of transitional assistance to not come out with information, to keep it secret and to keep it from the public. so i question the verification process here in massachusetts, whether it's adequate, whether it's being followed. just in the past year alone, we have been inundated with fraud and abuse scandals here in this program. we had five major drug busts in our program where people were trafficking their cars for drugs, selling them for 50 cents on the dollar so we've got some real serious issues here we need to look at, a drop in the bucket with the 19,000 people. >> greta: okay, now, the state didn't come forward with the 19,000 people that got caught during the course of a voter registration, is that correct? >> no, they didn't.

>> greta: so the state didn't come forward. did the state know about it and keep-- the state knew about it and kept it hidden? >> well, i'm sure they knew that all these people, the addresses were returned, the letters were returned undeliverable. it was by an foia request from the boston herald, i believe, that this information came to light and like i said, the dta operates really under the cloak of darkness where the information is not made available to the public even though this is a taxpayer-funded public assistance program. >> greta: i'm trying to figure out, i mean, first of all, figure out whether the 19,000 people who are missing, whether or not they really are receiving the payments, i suspect that some portion of them, probably not all. the first question. the second question, i wonder, is it a question of incompetence, bureaucratic incompetence or something where the state was well aware, but looked the other way, was it for political reasons or something else, that's what i'm trying to figure out. >> you know, i think there's some incompetence going on. i think that the department is

mismanaged. and there is some looking the other way going on here. there's really no incentive to get rid of the fraud and abuse in the program because really, these people get more money, states get more money, the more people they have on the welfare roles. so, you know, it's almost like the fox guarding the hen house here when they're doing their own oversight, their own investigations and own eligibility. >> greta: under that theory then, even if you don't live in massachusetts you should be angry if you live in other states, if it's federal tax money the more you have on the roles the rest of us are paying for a portion of your 19,000 missing people who are getting welfare, right or wrong? >> that's right. and we're talking, you know, if you talk about all the states that have these programs, there's fraud and abuse in all the programs, we're talking about billions and billions of taxpayer dollars and people just continue to look the other way. and it's really time that we got serious about fixing these programs and making the eligibility requirements much

more strict, doing asset verification and identity verification and making sure that the people who get into the programs really belong in these programs because we don't have enough money to go around as it is. we have senior citizens who can't pay their bills, who can't buy their prescription medicine. we have people in the military who are on food stamps, it's a disgrace and children are involved here as well and also suffer when the money is misused for begin inappropriately to people who shouldn't be getting it. >> greta: i don't understand why it wouldn't be, you know, such great pride if you're able to ferret out waste and fraud and really-- time and time again people just look the other way or ignore this and move and. it's extraordinary that people don't have -- politicians don't really enjoy like fixing this. >> you know, and you think they would, greta. but for some reason this is like one of those third rails of politics and people don't want to touch it, but i'm really determined to make a difference in this program and make it better here in

massachusetts for the taxpayers here. there's hard working taxpayers out there that work two and three jobs to support their families and they shouldn't be having it hear these stories of fraud and abuse in our system. >> greta: well, and of course, since the rest of us are also helping to pay as federal taxpayers then we all hope that you straighten it out, too, and every other state does as well. representative, thank you. >> thank you, greta. >> greta: coming up they're being called maternity hotels, but are they just scams and are you the one getting scammed? how could that be, you? find out next. and also, this should set your hair on fire, a rape conviction reversed in california. why did the california courts do that? because the victim is not married. she is single. vo: this week at officemax everything you can fit in this bag is 20% off. saving 20% on everything your company needs. it's a big deal. check your december 30th sunday paper or print the coupon at officemax.com.

>> it's not just the sunny weather and movie stars luring tourists to southern california. a very kind of tourism industry springing up in los angeles so-called maternity hotels are attracting pregnant women from asia. the l.a. times reporting that the women are travelling to the united states and staying in these hotels until they give birth. why? from the inland valley daily bulletin joins us, good evening and tell me why are they travelling to the maternity hotels? >> good evening, hello, greta. happy new year. >> greta: happy new year. >> thank you. well, these pregnant women who

are mostly wealthy women are coming to the united states on temporary visas and they are coming here with the intention of having their child on american soil. and according to the 14th amendment, children who are born on american soil are granted automatic citizenship and are therefore allowed to have benefits when they he have that citizenship. so what these women-- go ahead, i'm sorry. >> greta: i was going to say i went through the articles and www.usababycare.com and i assume in the chinese dialect and it seems like pretty overt in advertising. this is no big secret that these maternity hospitals or maternity homes are available, or hotels are available, isn't that true? >> no, it's not illegal that these women come over here and

visit, again, they're here visiting. >> greta: but, i mean, i don't mean illegal, but i mean, it's quite obvious what -- this is no big secret? >> no, amongst the residents it is no big secret, you know, they're -- it's only, it's a secret until the residents actually find out that they are he' actually happening, but they're quite common. you know, in the san gabriel valley and rowland heights and popping up there and most recently in the city of chino hills, an alleged maternity hotel operating in a large mansion over this as well. >> greta: how much does it cost? >> in talking to some experts, it's looking as if it's going to be costing the mother and possibly the husband anywhere between 30 to $50,000. one expert actually reported up to $100,000 to do this and

again, these are wealthy people, wealthy individuals that are able to come to the united states and do this. and it's not just chinese women. in our reporting we've heard pregna coming from turkey as well, a majority of the women from turkey are going to new york and the majority of pregnant women from the asian countries are coming to california. >> greta: is there any-- i mean, obviously, we have a child born here in the united states, that child then becomes a citizen. are the parents then immune from some -- is there some effort later to deport them or what happens to the parents? >> you know, the parents go back home and when the child turns 18, they can come here and you know, they'll have voting rights and they'll be obviously to obtain a driver's license. nothing really happens to the parents from our reporting that we can see. at some point though, the child is able to petition for

their parents to actually come to the united states. >> greta: well, we'll continue to follow this. i'm sure that we're going to have a big immigration discussion at least what the republicans and democrats have promised us. anyway, nice to see you, thank you. >> thank you. >> greta: coming up, a judge telling a neglectful mother no more children. now that strange sentence is now raising the question, is that even legal and how is that judge going to enforce that? we have the perfect panel to ask, our legal panel, that's next. and in 90 seconds, revenge, a woman finds a creative way to get back at her ex-boyfriend. if you've ever had a bad if you've ever had a bad breakup you're going to want excuse me, sir i'm gonna have to ask you to power down your little word game. i think your friends will understand. oh no, it's actually my geico app...see? ...i just uh paid my bill. did you really? from the plane? yeah, i can manage my policy, get roadside assistance, pretty much access geico 24/7. sounds a little too good to be true sir.

i'll believe that when pigs fly. ok, did she seriously just say that? geico. just click away with our free mobile app.

>> they say hell has no fury like a woman scorned and a woman in new zealand just proved that's true when her ex-boyfriend ran off, the woman cooked up a unique and profitable revenge plot. what did she do? get this, angela potter sold the secret location toss her ex-boyfriend's favorite fishing spots. that's right he'd entrusted her with the information while they were dating. after he high tailed it for australia, potter auctioned that off on the internet and she expect add few hits, but got nearly 90,000 and made $3,000 and spent that on herself. potter insists she wasn't trying to be cruel, he wanted a good laugh and got it. looks like her ex will have company at not so secret fishing spots and potter is

now dating a new fisherman. now, we want to hear from you. what have you done to get back at your ex. tell the truth. go to gretawire.com, it' sometimes what we suffer from is bigger than we think ... like the flu. with aches, fever and chills- the flu's a really big deal. so why treat it like it's a little cold? there's something that works differently than over-the-counter remedies. prescription tamiflu aacks the flu virus at its source.

so don't wait. call your doctor right away. tamiflu is prescription medicine for treating the flu in adults and children one year and older whose flu symptoms started within the last two days. before taking tamiflu tell your doctor if you're pregnant, nursing. have serious health conditions, or take other medicines. if you develop an allergic reaction, a severe rash, or signs of unusual behavior, stop taking tamiflu and call your doctor immediately. children and adolescents in particular may be at an increased risk of seizures, confusion or abnormal behavior. the most common side effects are mild to moderate nausea and vomiting. the flu comes on fast, so ask your doctor about tamiflu. prescription for flu. >> from america's news headquarters, i'm mar nanne rafferty. word that president obama could name his next defense secretary as early as monday. former senator chuck hagel is considered the frontrunner.

the president will make several personal announcements after returning from his vacation in hawaii. he needs to nominate a new treasury secretary and a permanent cia director. sweeping new safety rules proposed, so that farm irrigation water be cleaned that, animals stay out of fields and workers wash their hands in the wake of deadly outbreaks linked to contaminated peanuts, cantaloupe and leafy greens, food-borne illnesses like listeria and salmonella cause 3,000 deaths every year. now back to "on the record." for all of your latest headlines, go to foxnews.com. no back to "on the record." . >> greta: a very strange plea deal raising eyebrows in florida. a judge ordering a neglectful mother to stop having children. she was convicted of child abuse, left her kids in the hotel room while she went out

partying and the judge banning the woman from having any children during her 13 years of probation, can the judge do that? and how is that going to get enforced. joining us our legal panel, michael cardoza, and bernie grimm and ted williams. can he do that, can it be enforced? >> and people say can the police do that and the judge do that? yes, they can, the issue is whether it's-- i think the human right of having children and pro creating, a judge can't step between that, what happens if she gets pregnant, can he order her into court and have an abortion. >> she loses her probation and goes to jail. >> and has the baby in jail, and it's troubling, the woman is completely irresponsible fthere's a case to tell a woman to stop having children, this is it. >> i should add the latest child abuse, a guest found a

child strapped into an overturned stroller in a hallway while she was partying. >> again, it's troubling and i wish the judge could do this. we're not living in china where you're limited to the amount of children that you can bring into the world, but let's be very candid here, there are women-- >> it sounds-- >> and these crack babies into the world, there are women who mistreat and abuse these children when they come into the world. i wish the judge had this power. this judge doesn't have this power unfortunately. >> greta: all right, michael cardoza. >> i've got to tell you, it's a constitutional, fundamental right to have children so for a judge to do this, do they do this? yes, will it be on appeal, yes. i think that bernie brings up a good point. and the first thing that jumps into my mind, did the judge order don't conceive children

or don't have children because if it's conceive children then while she's pregnant, she's violated the probation, but if it's don't have children, then springboarding off bernie's comment, what about abortion? is she going to hide the evidence and have an abortion and that brings up all sorts of other issues, so she gets pregnant, she has an abortion to hide it from the judge. it brings all sorts of ethics, and don't think that this is the first time this ever happened. down in texas in '08, a judge by the name of baird, did this exact same thing to a woman down there. but he said don't conceive and don't have children. did it stand? apparently it did, but when and if this one goes up on appeal our courts will never affirm this. >> now what, we talk about this case, but it's really in some ways not unusual that people have multiple counts of child abuse, she was on probation four years no contest, charged with hitting her son in the face with a

belt in 2009 complicated by the fact they love their parent, the abusers and this is sort of the ugly secret in the courthouses that these happen all the time. and these poor kids. but anyway, let's take a look at another unusual case, a california man was convicted of rape and prosecutors say he sneaked into a sleeping woman's bedroom after her boyfriend left. he pretended to be her boyfriend and had sex with her. when she woke up and realized who he was, she screamed and resisted and the man was found guilty of rape, but now appeals court ruling reversed his rape conviction, why? because the woman, she wasn't married. bernie? >> troubling, really-- >> troubling. >> really troubling because under this scenario, i could go to a local dormitory, get in bed with a woman, and whisper, this is tom cruise, have sex with her and it's not rape. so the statute needs to be changed. >> it's from the 1800's isn't it. >> 1838 and i think ted just turned 20 then. >> you know, and bernie is

absolutely right. now, the statute is enacted in 1872 says that rape is when you have sexual intercourse with someone other than your wife, or-- >> isn't it-- okay. >> but what i really believe is going to happen, this case has been remanded back down to the lower courts. i believe that they'll probably be a plea bargain in this and that this guy will not get away scott free with raping this woman. >> greta: and michael, since this is your silly state, and usually think of rape as a sexual act without content. i mean, can a woman content when she thinks it's somebody else? >> can she content? sure, in a sense she can content, but isn't she deceived? here is what's going to send you all up a wall. a couple of years ago down in santa barbara, this exact-- >> california. >> exact thing happened, in california i know, we can take another shot -- i'm going to leave wisconsin alone now. but equivalent to california

if i believe i recall correctly. and anyway, down in santa barbara, what happens, this exact same thing. what happens? our legislators start to write a law, that law gets stuck in the-- i believe it was public safety committee and there it sits. so, two years later, the legislators in california still haven't amended this law so this type of thing is against the law. the appellate court in this case was absolutely right. under the way our law is written in california, what this man did and what the d.a. argued to the jury, does not make it rape. the law has to be changed. >> greta: it brings it back to the question-- >> it's horrifying, but it's not against the law here. >> greta: but it brings back the issue, the politicians not completing their job and they have this law here and what they all do, they went on vacation and going to basically ignore it. time, time and time and time again and we keep electing them. >> and we do keep electing them. this is clearly one where the legislators needs to change

this. rape is rape. >> greta: you can't retroactively-- >> no, but the fact about it rape is rape. this woman, if you believe the facts as she has presented them, that she was unconscious, she was not aware that this was her boyfriend and that this guy had sexual intercourse-- >> not unconscious, but-- >> she was in an unconscious state according to her and this is troubling and i believe-- >> asleep. >> that's unconscious, i believe. >> greta: well, gentlemen as always, thank you. >> okay. >> greta: and now famous crime writers mysteries, dennis is the author of shutter island, gone baby gone. and his beloved dog is gone. disappeared from his home on christmas eve ab covered a special reward to anyone who brings tesa home. >> we're offering a cash reward absolutely, but also, i am a writer well-known in the city you want to be in the next book, you want a character named after you in

the next book, that could be arranged if you, if you bring me home my dog. my dog home to me. >> greta: he hopes his beagle is picked up by someone who doesn't know she has had a home and hopes to bring tessa back soon and so do we. your incredible shrinking paycheck. how hard will you get smacked. find out what you didn't know about your paycheck next and also caught on camera-- >> why are these people so distraught. what could have made them this upset. upset. you'll see for yourself and [ whistle blows ] hi victor! mom? i know you got to go in a minute but this is a real quick me, that's perfect for two! campbell's chunky beef with country vegetables, poured over rice! [ male announcer ] campbell's chunky soup. it fills you up right.

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>> greta: 11:00 is almost here, it is time for last call. the new film version of "les miserables" is a box office hit. everyone knows it's a tear jerker but sit making movie fans miserable? check out this reaction to the film. >> the end -- it was so... >> oh, my god. my god. i can't talk about it.

[ crying ]. >> the family members... >> that is your last call and we are closing down shop. thank you for being with us tonight. make sure you go to gretawire.com and let us know what you thought about tonight's show. we'd like to congratulate bret baier, tomorrow is his four year anniversary of anchoring special reports. we're anxious to see what he's going to do in the next four years. congratulationses and good night from washington, d.c.. go to gretawire.com, blog with us. that is a victim talking. anyone listening? >> dana: hello. i'm dana perino with andrea tantaros, bob beckel, eric bolling, greg gutfeld. it's 5:00 in new york city. this is "the five."

♪ ♪ one of the biggest worries and greatest insult to american that the country is becoming more and more like europe. europe financial woes are fodder for jokes but do we live in a glass house. there is this headline? "america turns european." the cover article says in the white house and capitol hill there is increw duality that the politicians in europe could be incompetent to handle economic problems a addicted to the last-minute short-term fixes. how with remanaging our own afirs at home? mark stein. >> america voted for big government in november. what it didn't vote for is the willingness to pay for it. basically, the spending $1 trillion a year you don't have on nothing. nobody can point to what the money goes to. it goes to bureaucracy food stamps and dependency. it doesn't go to anything

real. if you keep doing that you are signaling that the american era is over. >> this is one of the point that markstein is making for a while. he talked about that in the recent book. do you think we have similarities dealing with the financial situation? >> eric: i love marc stein but i have gone at it with him on this issue time and time again. nothing like europe. not heading to become like europe. never like europe. american worker is the most productive in the world. gdp, per cap ta, we introduce $48,000 per year, per person. germany, $39,000. the strongest economy in europe, 39,000 per worker. spain is 32. japan $32,000 per year, per worker. employed worker, that is everyone. if you take employed worker we produce