Another legal question. Unenforced laws.

[Diceman]

The statute proscribes only acts that are malum prohibitum and not malum in se;

What does this mean?

Michigan had a desuetude incident a few years ago with “The Case of the Cussing Canoeist.” Apparently, a guy out in a canoe got mad and cursed a blue streak. He was then charged with violating an old law which makes it illegal to swear in the presence of of women or children. Eventually, he won in court. I wish I could have asked that prosecutor, "Dude, don’t you have anything better to do? :dubious: "

[waterj2]

@Diceman

What does this mean?

Michigan had a desuetude incident a few years ago with “The Case of the Cussing Canoeist.” Apparently, a guy out in a canoe got mad and cursed a blue streak. He was then charged with violating an old law which makes it illegal to swear in the presence of of women or children. Eventually, he won in court. I wish I could have asked that prosecutor, "Dude, don’t you have anything better to do? :dubious: "

To quote from my handy little legal dictionary:

MALLUM IN SE Lat.: evil in itself. Evil as adjudged by a civilized community; refers to an act or case involving conduct punishable because of the nature of the conduct, not only because the law has declared it punishable.

MALUM PROHIBITUM Lat: wrong because it is prohibited. Made unlawful by statute for the public welfare, but not inherently evil and not involving moral turpitude.

[PBear42]

Thanks Gfactor. Learn sumptin’ new everyday. Today, that’s desuetude.

[Polycarp]

I am going to advance a “fact” and then ask the Dopers-at-Law to clarify it. For U.S. citizens, in addition to desuetude, there is also the Fourteenth Amendment guarantee of equal protection. As I understand it, this is pretty limited but can be a valuable tool in defending yourself. If there is a clear-cut pattern of inequity of enforcement (e.g., all the cars stopped for speeding happened to be from out of state; of the 14 people at the party, eight were arrested, but the chief of police’s sons and the mayor’s son and daughters just happened not to be arrested) – then you may have a 14th Amendment defense.

[Gfactor]

@waterj2

To quote from my handy little legal dictionary:

Right. From the same opinion:

First, we must distinguish between crimes that are malum prohibitum and crimes that are malum in se. (See footnote 1) “Crimes that are malum in se will not lose their criminal character through desuetude, but crimes that are malum prohibitum may.” Printz, 187 W.Va. at 188, 416 S.E.2d at 726. In the case at bar, the circuit court held a hearing to discuss various pre-trial motions on October 12, 2001. During the hearing, the assistant prosecutor argued that the defense wrongly assumed that a violation of W.Va. Code § 61-3-51 is malum prohibitum. The assistant prosecutor based this argument on the premise that “stealing, being as though it is one of the Ten Commandments, is malum in se.” The court reminded the attorney that the petitioner was not charged with stealing. The defense attorney then argued that “[t]his kind of statute is clearly malum prohibitum. The whole distinction between malum in se and malum prohibitum makes it clear. This is not anything that came up through the common law or something that is inherently wrong.” The court made its ruling by stating, “I don’t think there’s any question that it’s a regulatory statute[.]” We need not belabor this point. We agree with the circuit court.

[Gfactor]

@Polycarp

If there is a clear-cut pattern of inequity of enforcement (e.g., all the cars stopped for speeding happened to be from out of state; of the 14 people at the party, eight were arrested, but the chief of police’s sons and the mayor’s son and daughters just happened not to be arrested) – then you may have a 14th Amendment defense.

Again, sometimes: Constitutional Law. Equal Protection of the Laws. Defendant Permitted to Prove Discriminatory Enforcement of Statute That Is Generally Enforced. People v. Walker (N. Y. 1964) on JSTOR

[Diceman]

@waterj2

To quote from my handy little legal dictionary:

MALLUM IN SE Lat.: evil in itself. Evil as adjudged by a civilized community; refers to an act or case involving conduct punishable because of the nature of the conduct, not only because the law has declared it punishable.

MALUM PROHIBITUM Lat: wrong because it is prohibited. Made unlawful by statute for the public welfare, but not inherently evil and not involving moral turpitude.

Thanks. I suspected that this was the distinction, but I wan’t to hear from a more knowledge source.

[Otto]

@Diceman

What does this mean?

Michigan had a desuetude incident a few years ago with “The Case of the Cussing Canoeist.” Apparently, a guy out in a canoe got mad and cursed a blue streak. He was then charged with violating an old law which makes it illegal to swear in the presence of of women or children. Eventually, he won in court. I wish I could have asked that prosecutor, "Dude, don’t you have anything better to do? "

The cussing canoeist’s conviction capsized (heh) on First Amendment grounds.