I hope you’ll bear with me as my ideas are kind of half-formed here, and I’m throwing an idea out partly in the hope that someone else will recognize what I’m getting at better than I’m able to express.
Every time a discussion arises like the thread on manga child porn in Sweden, it seems to me that there’s quite a bit of unspoken rationalization going on, and condemnation of others for an unspoken subtext. On the one side, you have people saying that since no actual children were harmed, outlawing virtual CP is “stupid” and goes against the purpose of the law. On the other side (not sure if it’s in that thread, but I’ve seen elsewhere) people will argue that there’s some kind of societal effect and children would be harmed by extension.
But aren’t both sides dancing around the real issue that we’re dissatisfied that the law is futzing around with finding ways to jerry rig an acceptable condemnation of a bad “action,” when what society really wants is to target bad people. No matter the niceties of the law, people who have anything to do with sexual depiction of minors in any form are bad elements that need to be removed from society – is the way I read it.
And it’s not just kiddie porn (which I really don’t care to debate, except for the purposes of this example, by the way). People who are profligate spenders or hold certain views on race or sexuality or gender roles, or have sympathies for certain countries or political/economic systems – don’t both sides of any such debate sort of avoid the real subtext that keeps arising again and again – that certain people are undesirable, enemies, even, and ought to be pushed out?
I guess my main purpose is to ask a few questions: has been any explicit acknowlegement of this subtext? Is there a difference in legal systems how they treat Bad Actions vs. Bad People? Has this been a point of evolution in Western legal theory?
And if there’s a debate to be had here, maybe the problem of this unacknowledged subtext applies not only to law giving but to law making, and is the real driving force behind the increasingly poisonous political environment in the US? More and more, every debate seems to boil down not to “is what you say true” but rather, “are you one of them? Whose side are you on?”
It seems to me that the law needs to address bad results. Getting into bad people or bad actions opens a can of worms with potentially scary results.
Are homosexuals bad people or are their actions bad?
I’d say neither (with regard to homosexuals) but to be sure many people do condemn them and the difference between bad action or bad person becomes blurred there. You could pick either (if you believed it) and use it as justification to discriminate against them.
So, for me, the question is one of “bad results”. Does Manga that depicts child porn have a deleterious affect on society (e.g. increase child molestation)? I honestly do not know myself but if you are going to bust someone for it then I think that case needs to be made.
Note I am no fan of CP in Manga (or CP of any sort or Manga in general really) but it is not for me to decide you can’t have it because I don’t like it. Again it is akin to homosexuality. Many people may find it icky but that is not a reason for them to outlaw it. I find red beets icky and would outlaw it but that, of course, is silly. If someone likes beets that is their own lookout…I do not have to partake. Until someone can show that beet farming destroys the environment or kills people or something then they should remain as an option for those who like them.
Judging actions just by their results can lead to problematical results.
It’s New Years Eve and two guys step out onto a rooftop in the middle of a city and shoot their guns up into the air. The bullets from one guy’s gun fall to earth and only hit the ground. But one of the bullets from the other guy’s gun hits somebody ten blocks away and killed him.
Judging from the results, the first guy did nothing wrong and the second guy committed murder. But most people would feel that’s not a just assessment of the situation.
One aspect of criminal procedure that seeks to keep the focus away from “Is he a Bad Person?” and more on to “Did he commit a Bad Action?” is the use of prior bad acts as evidence in a criminal trial.
The basic rule is that you cannot admit evidence of previous wrongdoing in a trial in order to prove that the accused acted in conformity therewith.
Why is it not relevant to note someone is a habitual (say) rapist?
Or is it only if the defense tries to admit testimony of what an upstanding guy person-X is that the prosecution can debunk it by showing he has not, in fact, been the upstanding citizen claimed?
I can see why having committed X-crime in the past does not make you guilty of Y-crime sometime in the future.
On the flip side I thought character could be used in court.
If someone said, “Whack-a-Mole committed Z-crime” I think I should be able to show that is wholly out of character in my defense.
So why is my past of never committing some heinous crime a defense for me but someone else committing a string of heinous crimes in their past not a point against them?
You may speed home in your car and not hurt anyone along the way (might even have good results that you get home early). Nevertheless you are by default endangering others which is a bad result. That the result did not come to pass that time does not absolve you of risking others.
Well, I’d hate to imagine a citizen who gets routinely arrested on tenuous ground by some cop with a personal grudge (and then released each time, the arrests being used only as a tool of harassment) have his arrest record introduced at trial the one time charges could be made to stick. That’s an exagerated hypothetical, I realize, but I like having checks on what the state can introduce as evidence.
Of course, if you’re enough to say under oath “I’ve never been in trouble with the law before now”, then blammo, in come the rebuttal witnesses. Peals v. Terre Haute Police Dept., 535 F.3d 621 (7th Cir. July 25, 2008) (No. 07-2804) clarifies the issue for the U.S. Federal Court system somewhat: “Testimony offered only as additional support to an argument made in a case in chief, if not offered ‘to contradict, impeach or defuse the impact of the evidence offered by an adverse party,’ is improper on rebuttal.” As I understand it, the witnesses can impeach the hypothetical statement “I’ve never been in trouble with the law before now” but can’t go on at length about your past criminal record or activities, as this exceeds the scope of mere rebuttal.
In that particular case, Peals was charging the Terre Haute PD with civil rights violations and, after he presented his case (and the defendent officers presented theirs), wanted to call another officer as rebuttal witness to testify that Peals had been arrested at an earlier time on trumped-up charges (presumably to indicate a pattern of harassment on the part of the THPD). The district court concluded, and the circuit court affirmed, that this evidence (assuming it was what Peals claimed - he was rather cagey about it) should have been introduced during his case in chief, not afterward when it looked like he was losing.
This case is mildly unusual in that the defendents were the police, but in general it highlights the need to shut the hell up when being arrested and to avoid testifying if at all possible (and if you must, keep answers short). Don’t give the plantiff/prosecutor anything he can use against you.
Among the exceptions for 404(b) is offering it to show a common plan, scheme, or motive. So the prosecution can’t simply tell the jury you raped in the past in order to convince them that you raped again.
But if you were convicted in the past for hiding in a victim’s closet, wearing a clown outfit, and committing the rape while while demanding that the victim admit she loves clowns, then this evidence could almost certainly be admitted in a current proceeding where the prosecutrix was raped by a man wearing a clown costume and demanding that she say how much she loved clowns during the act.
To me this is just saying you’re judging on actions not results. Shooting a gun in the air or driving while drunk are Bad Actions and should be condemned as such.
It may be better to say that we set up laws in the hopes of preventing bad results. Shooting a gun in the air is only bad if it is done in a way that can cause a bad outcome, just like driving over 60mph is not a bad act in and of itself. Driving over 60mph on a small residential street with children walking to school can cause bad results and is therefore bad while driving over 60mph on a freeway is expected.
Actually, I think I would be okay living in a society in which criminal prosecutions were based strictly on actual results, without regard to “intent” or any other nebulosity. If all unjustified killings (including accidents of reckless driving, etc.) were prosecuted as first-degree murder, I expect most people would be a damn sight more careful. This might well be more efficient than trying to control Bad Actions (which often leave no trace) directly.
Tricky. Picture an incident in 1958. A man gets into an argument in a bar, pulls out his brand-new Colt .45, shoots the other guy six times. By the time an ambulance shows up (ambulances at the time usually little more than repurposed hearses hired from local funeral homes, with scant specialized equipment or training), that guy’s stone dead.
In 2008, same argument, same gun, same six shots, only this time the guy is rushed by ambulance to a modern trauma center. He survives, but with lifelong injuries and/or paralysis.
In 2050, same argument, same gun, same six shotgs, but the bartender goes “tsk tsk”, leans over and sprays with nanodocs. These microscopic machines rapidly multiply in the guy’s bloodstream and repair the damage. Angry, he jumps up and punches you in the nose.
Aside from the battery angle in the last case, the intent and actions were the same - the only reason the outcome varies is because of technology. If only outcomes matter, the 2058 shooter need not be prosecuted at all.
You contradict yourself in the very next sentence. All you have done is made the “justified/unjustified” distinction vitally important, the difference between freedom and the death penalty.
Or to give another hypothetical, suppose I shoot somebody in the chest while screaming, “Die, motherfucker!” But unbeknownst to me, he’s wearing a bulletproof vest and he survives without injury. Under current law, I’d be tried for attempted murder. But under actual results based law, I wouldn’t be guilty of anything. A charge like attempted murder wouldn’t exist - you either killed somebody or you didn’t.
As I wrote above, too tight a focus on just results leads to problems. Things like intent and reasonable belief and probable outcome may create complications, but they’re important issues that shouldn’t be ignored.