Do penalties exist for "symbolic" crimes?

Factual Questions
1

I’ve heard stories of people baptizing other people’s children without parental consent and/or directly opposed to the parents’ wishes.

A few years ago I remember a story of a highschool girl who openly identified as a Witch being suspended or expelled after speaking a curse on another student (causing that other student emotional distress).

Now, although these acts hold great power to those who believe in them, it would be difficult to prove any harm or damage. What did the offenders actually do? Words? Water and oil? They didn’t really do anything. Yet, I know I would feel deeply violated if some were to baptize my child against my wishes. The curse thing I would just blow off.

How would the courts react? Do you have any recourse against someone who has wronged you symbolically? Is there any way to prevent rogue baptizers from striking again? Or would you have to prove in Court that this act was in some way hurtful in a more “real” sense?

2

The answer to your question is twofold. The american legal system consists of a Criminal branch and a Civil branch. In order to penalize someone under criminal law the representative of the State (usually District Attorney) must establish “beyond a reasonable doubt” that your actions violated some statute. On the other hand an individual may seek to be compensated for harm inflicted by another by initiating a Civil action. Usually, but not always this will be based on tort law. Torts are devided into two categories Intententional Torts (some examples are Assault , Battery, Tresspass) and the other category is Negligence. To succeed in an intentional Tort action the Plaintiff must prove with substantial certainty that the defendant commited each element of the alleged Tort. To prevail under a negligence theory the plaintiff must prove that the defendant had a Duty, and Breached that duty, that breach of that duty Caused (legally and proximately)the plaintiff to suffer Damages.

3

To answer your specific example, the ritual of baptism involves physical contact. Physical contact without consent is battery, which is both a crime and a civil tort.

4

But what if the child himself/herself consented to the baptism? I can see a situation arising where a 12-year-old decided to get baptized at church (say her parents are atheists). Could the minister then be sued for doing his job?

5

Can a 12-year-old give legal consent to a baptism?

The real problem here is, of course, measuring the harm and scaling damages appropriately.

6

[QUOTE=acsenray]
Can a 12-year-old give legal consent to a baptism?

[QUOTE]

Interesting question. IANAL, but offhand I’d have to say “yes.” Consenting to a symbolic act of worship is clearly different from consenting to, say, intercourse or something like that.

7

I’m afraid your offhand feeling is not appropriate even as a jumping off point for analysing the question. It seems to me that in common law, a lot of matters regarding choices made by minors are legally in the hands of their legal guardians. Just because consenting to an act of worship seems to be objectively different to consenting to a sexual act doesn’t seem to me to be a legally grounded argument. Although I’m a lawyer, I don’t know enough about this aspect of the law. When are minors given the right to consent to something, especially when the act they’re consenting to might otherwise be considered battery? Does the law give the minor the capacity to judge the degree of possible harm or is that something the law puts in the hands of parents?

8

Not offered as a legal opinion, but were I a minister and an unattended minor came to me requesting baptism my immediate question would be “what do your parents think about this?” There’s no way I would perform the ritual unless I had the consent of the parents.

In addition to battery, I wonder if a charge of custodial interference might stick.

As a personal aside, my mother was targeted as a child by a wandering baptiser who was invited in by her elementary school to baptise any children who hadn’t already been. My mother had been but didn’t know it so she got baptised again. I’ll have to ask her what her parents had to say about that. As far as I know there were no consequences to the rogue baptiser or the school as a result. My mom turned out all right, but she did have to pay a small fortune to get those horns filed down…

9

All I’m saying is that I don’t think a criminal jury would convict a guy for baptizing a 12-year-old against her parents’ wishes under current battery statues, nor would a civil award damages. However that same jury would certainly send him up the river for molesting her, even if she swore on the witness stand that it was consentual.

Perhaps I’m thinking about this too simplistically, but if
[ul]
[li]1) touching someone without their consent is battery, and[/li][li]2) a child cannot legally give consent to anything that might be considered battery,[/li][/ul]

…then I’m commiting battery every time I touch a child (who is not my own, of course) with or without his permission. If I tap him on the shoulder to get his attention, if I playfully arm wrestle with him, if I lend a hand and help him up after he’s fallen to the ground, etc.

I would think that the law would have to give minors some degree of freedom in making decisions involving being touched. As an example: when I was about 12/13 I remember my family was staying at a campground someplace, and a bunch of people (some adults, some kids) were playing voleyball. I asked to join in, and they said “Sure!” A little while later, something went awry and I wound up with a knee in my face. When I explained my swollen lip to my mother, she reacted appropriately (I think her exact words were “Be more careful next time”). Could my parents have sued (not that they would have)? I’m sure the jury would have agreed that I knew what I was getting in to.

So back to our hypothetical 12-year-old being baptized— I know that there are at least a dozen kids in my church’s youth groups who are there without their parents’… well not without their permission, but certainly not their approval. And I’m sure that the youth minister is aware of this. But if they asked to be baptized the youth minister would of course check with the parents about this. If the parents refused, I still believe that the law would be on the minister’s side if he went ahead and did the ceremony anyway. Clearly the situation would get progressively dicier the younger the child gets.

Is there an expert on family law who can speak to these points?

10

Okay … But that doesn’t actually tell us what the law is.

You forgot “harmful.” It has to be a harmful touching to be battery. Whether the harm I’m thinking of in this case – interference with the parent’s right to raise his or her child according to his or her own beliefs – is actionable is open for question.

The question of what the scope is of ineffective consent is also an open question in my mind. Obviously, a 12-year-old can give consent to certain things, such as a transaction to purchase a pack of baseball cards. Can the child give consent to something that is legally his parents’ right to control?

You’re forgetting harm; it’s a necessary element.

What is this belief based on? I’ve admitted that I’m talking out of my ass here; thus, I’m not putting forth my beliefs as any kind of credible conclusion.

Another thing to note is that capacity to consent – as opposed to whether or not consent was given – may be a matter of law rather than a matter of fact. Thus, it wouldn’t be up to the jury to decide the issue. If the law is that a minor does not have the capacity to consent to baptism (yeah, okay, it looks funny when I write it down – where is the legal expert?), then the jury doesn’t have the option to say, “Well, we think he knew what he was doing.”

11

Okay, interesting story. Battery is an intentional tort (as opposed to negligence or strict liability (product liability)), so intent is a necessary element. The intent of the perpetrator is important. Was the knee in your face an inadvertant result of robust play? Or was it an intentional act meant to hurt you? If so, then I think you might have had a cause of action.

Let me tell you a story. About 12 years ago a friend of mine and a few of his pals were playing basketball at a public playground. Along came a few other guys who wanted to join in a pickup game. The game was heated and my friend and one of the strangers exchanged taunts. After a deft play, my friend laughed in the stranger’s face. The stranger then struck him on the neck with both hands, breaking his neck.

Was this intentional, harmful touching a battery or had my friend consented to it by joining in a lively basketball game?

12

You are certainly thinking about the issue too simplisticlly. For the record, under Common Law, Battery is any harmfull or offensive touching of another person without consent. While I am sure that many juries would probably be unable to render a verdict of guilty in the case you describe, it is not based on law but rather that it only takes one fundamentalist to hang a jury. Minors cannot be bound to a contract (with a few technical exceptions) nor can minors consent to engage in sexual intercourse. Minors lack the legal capacity to provide consent. Any parent would have a legal basis to file a lawsuit against anyone who had the audacity to Baptize their child without their consent. I agree however that it would probably not constitute a criminal battery, more likely it would be considered an intentional infliction of emotional distress. Though a child may not consent the question for a criminal court is whether the touching was harmfull (clearly a baptism usually does not constitute physical harm, usually) or whether it was offensive to the child. Nevertheless the parents still have a valid legal position to file a complaint against the arrogant S.O.B. that felt whithin his or her rights to usurp the parents judgement in matters pertaining to their child. Personally, I do not profess faith in any christian sect, I respect those that adhere to the teachings of Christ, and would hardly consider it a christian act to undermine a parents will in such a matter.

13

OK, freely admitting that I’m talking out of my own ass here, this belief is based on two things. FIRST, I would think that the minister could argue freedom of religion if he baptized a consenting child against the parents’ wishes. If the child genuinely wanted to be baptized, and understood the process, then I’d have to say that her own freedom of religion is at issue here if she asked the minister to baptize her and he couldn’t do so because of the constraints of the law. The minister’s freedom of religion might be at issue here, too, although I don’t know to what degree.

Let’s imagine that the child’s parents are of Denomination A, and they believe that anyone not baptized in Denomination A is going to Hell. If the child is baptized in Denomination B, then is it up to the courts to tell the minister that he commited a crime by baptizing her into Denomination B? It seems to me that we have a case of “custodial interference” rubbing up against the First Amendment. Again, I’m no legal expert.

SECOND, I wrote that statement after imagining what would happen if I were on the jury. Would I vote to convict a guy for battery for baptizing the child against the parents’ wishes? Absolutely not; the minister has done nothing worse than getting her wet. On the grounds of custodial interference, probably not; unless someone could show me the law where it says that a minor does not have capacity to consent to baptism.

On a somewhat personal note, acsenray- I get the sense that you’re taking issue with me for putting forth statements such as “I believe” and “I would think” as answers here in this General Question thread. You have a valid point. However, I also believe that all good General Questions (and this is a good one) invite further discussion, especially in cases where there might not be a General Answer. So I believe that, in this case at least, my “answers” are valid in the sense that they lead to further discussion. You may disagree with me, but we’ll have to, as they say, agree to disagree agreeably. Peace?

14

The First Amendment isn’t a defense to civil battery. Remember, we’re talking a harmful, unwanted touching.

The scope of a minor’s First Amendment rights is not a settled question. There is also a serious question of capacity – does the child really understand what’s going on? If the parent had an opportunity to intervene, would the child still want to do it?

If these facts give rise to a cause of action for battery, then the minister’s freedom of religion isn’t at issue.

It’s an interesting point, but one thing I’m fairly certain of is that the First Amendment isn’t going to play a serious role when we’re talking about a dependent minor in the care of an adult.

That’s fine, but this is not helping us figure out what the law is here. First you have to know what the law is; then you can give it to the jury. In any case, you might be surprised at what a jury’s going to decide. I have a feeling that if there is a cause of action here, there might be more than a few jurors who could be persuaded that interfering with a parent’s religious beliefs and right to raise a child in the manner he or she sees fit is quite offensive. Now, as I said before, as to judging the degree of harm and scaling the damages – we might just have to see the actual condition of kid and parents and what kind of a case they put on in order to come to a conclusion.

That’s the question at issue here, isn’t it?

I think you misunderstand me. I’m not actually taking issue with you at all. I’m trying to frame the discussion in a way in which I think is going to be more helpful in getting us the right answer. What you’ve posed here is an interesting question about the law. I’m trying to define what the legal question is and what questions are going to help us find the answer.

I don’t think I’ve actually disagreed with you. I’ve tried to be very careful in stating that I don’t know the answer and that I’m not sure of the assumptions I’m making. In putting the questions I have to you, I’m not challenging you personally.

15

No homie, there is absolutely no issue concerning either religious freedom in general or the First amendment specifically. Notice how in places children are subject to curfews, yet adults cannot be so restricted? This should give you an indication that children are treated differently under the constitution. Furthermore, the constitution prohibits the State from legislating the establishment of religion or the free excercize thereof. Another clue, polygamy is illegal, as well as pot, for Rastafari’s and Peyote for Hopi. Get it? Freedom of Religion does not allow self rightious zealots to interfere with parental rights concerning their children.

16

To top it all off, I’m still not convinced that battery is the correct rubric for this analysis. Doesn’t anyone know whether there is a cause of action for interference with custodial rights?

17

OK then. I apologize for misunderstanding you.

In the final analysis, there may not be a law that specifically prohibits baptizing a child against the parents’ wishes. We’ll wait for the expert in this area of the law to have the final word.

Yes, I understand. But what about the child herself? If she wanted to be baptized against her parents’ wishes, it looks like the law is telling her that she’s SOL because the person doing the baptizing is subject to criminal and civil action.

18

Lots of interesting responses, thanks for sharing your thoughts.
Any thoughts on the second situation I mentioned in the OP- the highschool Witch who sopke a curse on her classmate? Sure, one might say “just blow it off, it’s only words” but it seems that the “cursed” student was genuinely distressed.

Does anyone have any other cases to mention that might fit the original question of the harm of a “symbolic” act?

19

Infliction of emotional distress on the parents, yes? I think in this case the “crime” would be committed against the parents, not the child.

20

IANAUSL but, while a battery is a harmful and/or offensive touching, in general it seems to me that the harm or offence must be to the person touched. If you hit my wife I will certainly be distressed and offended, but you will be charged with the battery of my wife, not me.

So if I baptise a child against its parents wishes, and the child is happy (or indifferent) and is otherwise uninjured but the parents are distressed and offended, I somehow doubt if that would be a battery of either the child or the parents. The child has been touched but not harmed, and the parents have been hamed but not touched.

There is a tort which goes by various names in various jurisdictions but amounts to the negligent (or reckless or intentional) infliction of emotional distress. The classic case involves somebody telling a woman that her husband had been badly injured in a car crash when nothing of the kind had occurred.

The emotional distress has to be severe and (at least in my jurisdiction) has to have physical consequences; simply being very, very upset is not enough; at the very least, we’re looking for the clinical symptoms of shock. There’s no remedy for hurt feelings, however badly they’ve been hurt. And, of course, it has to be a foreseeable consquence of the defendants actions or statements.

I suppose its possible that, if I baptise a client against the wishes of its parents, they’ll be so upset that they’ll suffer a nervous collapse, but I suggest it’s not really foreseeable in the absence of special circumstances; e.g. they belong to a sect which believes that the “wrong” baptism will damn their child. If they’re simply offended because of their own atheist convictions, sufficiently severe emotional distress is not really foreseeable, I would think.

In the case of the witch, severe emotional distress probably is more foreseeable, but I guess in the end it will be down to the jury to say.

But note that to bring this action the plaintiff has to argue that the act or statement complained of, and the offence caused, is <i>not</i> purely symbolic; he has to point to actual physical consequences in himself resulting from the act.