This surely is where the video evidence comes in? A reasonable person should not need any further evidence that actual harm was caused by that slap
Gee, I’m just shocked, I tell ya.
Sure. But if you were in such a relationship you would reasonably believe that such a touching would not be considered offensive and any harm would be consented to.
The test is there to punish the guilty mind, but not the unlucky one. The example given in law school is the tap on the shoulder to someone on the street to ask for directions. Perhaps that person is hypersensitive and resents being touched. However, you, in tapping the person on the shoulder, would not believe that touching to be offensive to a reasonable person in that scenario.
I agree. I said the same (essentially) to my GF. If it was you or me we’d have been tackled and frog marched out of the theater and put in jail.
Which is why I don’t understand the LAPD’s response. If they decline to prosecute, then just say so. But to say (paraphrasing) that we are “aware” of a slapping incident and that the victim does not want to fill out a police report, but we are here if he wants to–is simply absurd. They aren’t “aware” of anything, they saw it live. They don’t need a complaining witness.
If they found a dead body on the street would they just say that anyone interested can file a report, and if none is filed, then no biggie? I know that this isn’t murder, but I thought we had decided some years ago that the “boys will be boys” attitude no longer applies to violence, and that a complaining witness is not necessary when you see a crime on film.
There is debate over this. In the UK they made it illegal.
The UK House of Lords ruled 25 years ago in the case of Brown that there was no public interest in allowing individuals to consent to injuries during sadomasochistic (S&M) encounters. In Brown, the appellants had engaged in various acts ranging from whipping and branding to beatings.
The Law Lords expressed concerns about the dangers posed by these activities, particularly that they could get out of control and that the resultant harm may be greater than that which was anticipated. In their appeal, the participants, a group of largely professional men who had taken great care to ensure their activities were safe, had argued that they had a right to engage in these private sexual activities. They maintained that no harm had been caused that had not been consented to, and that their use of code words and the sterilisation of their equipment meant that there was little risk of serious injury or the transmission of disease.
These arguments were unsuccessful and where bodily harm is inflicted during consensual S&M – for example, consensual spanking which leaves a bruise – the person who has caused the injury has committed a criminal offence. SOURCE
Where I practice, the police don’t prosecute crimes; they leave that up to the lawyers.
I imagine that the DA’s office could still decide to file a criminal complaint. Where I am, that’s called a direct file. Since it’s a misdemeanor, Smith would be given a Notice to Appear with a court date, rather than get arrested.
(In fact, even if a police officer had been at the Oscars that night, he would have had discretion - based on my experiences- to issue Smith a summons rather than take him into custody)
In a non-sexual context, some US states have made the crime of “affray” illegal, that is where two people consent to fight. But such a thing is strictly not a battery. If you and I are in a bar, and one of us says the wrong thing and we agree to “take it outside” then we are both consenting to the blows that may be inflicted in a man to man fist-fight and that is never a battery, but may be an affray. If one of us pulls out a knife or a gun, for example, then that would make it non-consensual as you couldn’t rightly say that one of us consented to that–so therefore (at minimum) an assault or battery.
In the sexual context, I think that Lawrence v. Texas would come into play. Private, adult, consensual, non-commercial sexual conduct is constitutionally protected.
Yes, and sometimes these words are imprecise, but what happens when, say, a police officer pulls over a drunk driver? He arrests the driver and lodges something (we would call that a criminal complaint). If the prosecutor later refuses to prosecute, she can, but the initial decision is made by the officer.
And it is foreign to me that in LA, the police could watch the crime happen live in front of millions and say “meh, Chris, come down to the station if you want charges.” Smith would have been arrested and if the prosecutor later didn’t wish to charge, then fine, but the arrest happens if for no other reason than to get the person off the street to stop more crimes from happening that night.
Interesting, learned something new.
However, I doubt that applies here. I do not think there was an agreement to fight in this case.
If there was I would LOVE to have Smith and/or Rock stand in court and say the whole thing was pre-arranged/agreed to.
Smith apologizes to Rock. There we go. The police have all the elements that they need to convict him.
I think this British case was the one I was thinking of when I mentioned the distinction in law between consenting to play a violent sport that may result injury, versus consenting to be assaulted.
Maybe where you live - but I’m not at all sure that would happen where I live with an uncooperative victim (with the exception of domestic violence incidents). And even if the police arrested me because they saw me slap someone, there certainly wouldn’t be an onerous bail set for a few reasons - the first is because bail in my state is mean to ensure that the defendant returns to court and judges are required to use the least restrictive means to ensure that. Second is that only certain offenses qualify for bail - and a slap that didn’t cause impairment of physical condition or substantial pain would not qualify. In fact, it wouldn’t even be a crime - it would be a violation (harassment in the second degree) .
The third and probably most important reason is because the case would never even get in front of a judge for arraignment - because the district attorney’s office would decline prosecution *. No one is going to expend the resources to prosecute a probably unwinnable case with an uncooperative victim when the maximum sentence is 15 days or a $250 fine
* at least, the four district attorney’s offices I’ve worked with - the fifth might be different
the way my state-appointed attorney explained it to me was in California :
if I took a swing at someone a few times but missed that’s assault or attempted assault if I actually smack someone with a swing I had thrown its battery and its rare not to get charged with both at the same time
I’m not familiar with your location, but that is pretty much the same standard everywhere and it is routinely violated by the judge giving a bland pronouncement that the condition is “necessary for the protection of the community.”
Wow. So I can go around punching random people in your area and as long as I calculated the punch to “merely” cause pain but not “substantial” pain then I’m free to keep punching?
An unwinnable case?!? It’s the most winnable case in history. A confession, done in front of millions of witnesses. What does a prosecutor need in LA to convict? God himself testifying?
I had a former boss (an attorney) who was leaving town with his son at the airport when they got into an argument with another man. The son )aged early 20s) pushed the man. The cops were there and were going to take him into custody, but my boss convinced them to just issue a summons (which serves as a notice to show up in court - if you don’t appear, either personally or through an attorney, a warrant then goes out for your arrest), and they made their flight.
This is the example that I think of with regard to Smith. The son obviously had a lawyer (it turned out to be me), and was able to do some sort of community service or anger management class to get the case dropped.
Point being, there is a mechanism to legally address this short of outright arrest. But it would be unusual if it is simply ignored (when there is clear evidence of its occurrence).
Due to the very public nature of this I would think it very much in the interest of the state to show that using violence to sort out your grievance is absolutely not ok. Over 15 million people watched that (probably waaaay more by now with all the media hubbub).
I don’t disagree, but again, most people don’t get that courtesy. I wouldn’t be outraged if Smith was allowed to turn himself in on minimal or no bail given that the minor nature of the charges means he will not pull a Roman Polanski, but it shouldn’t just be ignored. And it should be noted that he was given a privilege to turn himself in when others would not be so lucky.
Another issue, I guess just stated differently, is that I would guess that there have probably been more than 50 (guessing) arrests for battery in Los Angeles since Smith did this.
When that guy is on the way to the police station, he would be justified in asking the arresting officer, “Why are you messing with me and did nothing to Will Smith?” Is there any answer that can be given other than “Because Will Smith is a famous movie star and you are just an average piece of shit.”?
As I said, I have a real problem with that.
They used to violate it here all the time , too. Except they couldn’t really give that line about the “protection of the community” because the law didn’t actually allow them to consider that. Which is why bail reform became a thing and they can no longer set bail for most misdemeanors and not for anything below a misdemeanor. When discretion is abused often enough, it gets taken away and that’s what the legislature did…
No, you could be charged with “harassment”, which is not defined as a crime but only as a violation.
I’m not in LA and I was writing my post when you posted about the confession which doesn’t even mention the word “slap”. But we were talking about what would happen if the police saw an ordinary person slap somebody - and if I slapped somebody and later apologized, that wouldn’t make the media and the police/prosecutor would never find out unless the victim turned co-operative.
I’m not saying I agree with the whole thing - but I also don’t agree that it was necessarily because Will Smith is rich and famous. Because it would likely happen here no matter who it was.