Monthly Archives: September 2017

But he said I could!

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Let us suppose that a very large man—we’ll call him Chris—runs full speed at another man, who we’ll call Alex. Chris launches himself at Alex headfirst, using his arms to carry Alex to the ground, where Chris lands on top of him. Wow. That sounds like assault and battery, right?

Or what if Floyd repeatedly uses his fists to pummel Conor in the face and head, his ultimate goal being to beat Conor so badly that Conor can’t stand up again? Also assault and battery.

Except… not. Because if we stick jerseys on the first two guys and gloves on the second two, we have a different story. We have professional sports. And in the extremely unlikely event that Chris or Floyd were prosecuted for his actions, he’d have a good defense: consent.

The general idea behind the defense of consent is to avoid criminal liability when the “victim” has agreed to be victimized. And there are some interesting twists to this defense. For one, the victim has to be capable of granting consent, which means he can’t be too young, too mentally disabled, or too intoxicated. The consent must be entirely voluntary and not due to threats. Consent is also generally not allowed as a defense in homicide cases, although the idea of assisted suicide has changed some views on that point. And the actions taken must be within the scope of the consent.

That last point has led to some interesting cases. Several hockey players have been convicted for exceeding the game’s permissible boundaries and attacking opposing players. But the extra violence has to be truly excessive. For instance, Mike Tyson was never criminally prosecuted for biting off a chunk of Evander Holyfield’s ear. This could make a really interesting plot point, and it’s one I haven’t seen explored in fiction. So have at it!

Kids

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The other day, my 14-year-old asked what the CJ system would do to a kid who “sort of accidentally” hurt another kid. (I’m hoping this question was entirely hypothetical.) My answer? “It depends.” Yeah, that didn’t satisfy her either.

The thing is, however, it depends. The first question is where the miscreant lives, because juvenile justice laws vary a great deal from state to state. In some states, the minimum age at which someone can be tried as an adult is 16. In some it’s 14. In some it’s even younger. The second question is how old our hypothetical delinquent is. And third, we’d need to know the details of the offense. What was the delinquent doing? Did she intend the harm or was it truly an accident? Did she have a weapon? Was she acting in self-defense? All of these factors will determine the type of offense she might be charged with and whether she has a reasonable defense. In some states, the decision of whether to try someone as an adult might lie with the prosecutor rather than the judge, depending on the offense.

Once I spent fifteen minutes explaining all of that to my daughter, she was shocked to learn that in California, where we live, she could be tried as an adult for some crimes. Then she had another question for me: if that hypothetical kid harmed another, could the delinquent’s parents get in trouble? My answer was the same: it depends. As circumstances warrant, they could be charged with something like child neglect or contributing to the delinquency of a minor. However, if the parents had supervised the child appropriately, hadn’t provided the kid with a gun, and generally did all the parental stuff they were supposed to do, it’s unlikely they would face criminal liability.

The upshot for you? If you want to include a juvenile offender, be careful how you craft the details, and be aware of your local laws.

In search of Truth

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I’m teaching a class on the history of criminal justice this semester (woohoo! Fourth Lateran Council!), and this week’s discussion turned to an interesting question: what’s the best way for a court to find the Truth? This might be a good thing to consider for authors, especially those who are creating a judicial system in a fantasy world or alternate universe.

For various historical reasons, England and it colonies ended up with a different approach to this issue than did continental Europe. The English—and American—version is known as the adversarial system. Under this system, each side in a criminal case presents evidence to an impartial decision-maker, usually a jury. Each side decides which evidence it wants to present. The judge in this system acts like a referee in a sporting event, making sure each side follows the rules. In the end, the decision-maker determines which side has been more persuasive. Has the prosecution proved every element beyond a reasonable doubt? Or has the defense managed to refute enough of the prosecution’s case to raise doubts?

The continental version is called the inquisitorial system. I know that for many people, that name brings to mind the Spanish Inquisition, but I assure you that heretics are no longer burned at the stake. In this system, the judge takes a much more active role and will often lead the course of the trial, making determinations about which lines of evidence to pursue. The judge will also determine guilt.

I don’t know that there’s any proof that either system is more effective at reaching the truth. Research has suggested, however, that people tend to feel most comfortable with and confident in the system they’re accustomed to. If you’re building a fictional system, you’ll want to think carefully about what suits your world best.

 

Rule of Law

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I’m going to try my best to keep politics out of this discussion. But lately there have been a lot of mentions of the Rule of Law, and I thought it might be a good time to discuss it.

The basic idea behind the Rule of Law is that law rather than people rules a nation. It means that no person in that nation is above or exempt from the law, not even those who create and enforce the law. Although the English phrase was first written around 1500, the concept has been around in many legal systems since long before that. In the Anglo-American legal tradition, the Rule of Law was explicitly recognized in Magna Carta in 1215; this document stated that even the King of England must obey certain laws.

Not all governments have respected the law. For example, when a dictator or autocrat is in power, or when a ruler is considered divine or a representative of divinity, he may will have unchecked power. And even when a governmental system nominally follows the Rule of Law, that promise is only good if someone is willing to enforce it. So if the ruler abuses his powers and those who are charged with controlling him do nothing, the Rule becomes meaningless.

I think it’s clear how all of this applies to us in the modern world, but how is it relevant to you as an author? If you are writing spec fic—especially fantasy or sci fi—you might want to think about the Rule. Does your fictional society respect it? How is it enforced? What happens when a ruler pushes the boundaries?