“To everyone who likes that Lewandowsky got charged: Will you agree that everyone who does nothing more than that should undergo criminal prosecution? Are you willing to pay the taxes to cover that? Are you ready to find out that you’ve already done it and you’re going to be needing to hire a lawyer? Oh, but it’s so funny when it happens to somebody else, somebody you don’t like. If that’s what you think, please just admit to yourself that you are entirely morally corrupt.”
––Law professor and blogger Ann Althouse, taking the popular position among the talking legal heads on CNN and elsewhere that charging Trump’s campaign manager for the technical crime of battery for for what appears to be minor contact on videotape is an abuse of prosecutorial discretion.
Ann is playing law professor here, and it’s hard to tell if she is asking these questions to provoke thought from the knee-jerk partisans and virulent Trump-haters, or if she really believes everything she wrote. I;m a fan of Professor Althouse, so I want to find a way to justify this post of her’s, which raises valid points and ignores others equally valid.
Do I “like” the fact that Lewandowsky was charged? I probably wouldn’t have charged him, but I’m not sorry he was charged. Why was a campaign manager grabbing a reporter? Why did the Trump organization react to the reporter’s complaint by attacking her honesty and character? I know the law shouldn’t be used to inconvenience people who act badly, and that doing this is usually an abuse of power. Still, do I like the fact that one of Trump’s thugs isn’t getting away with the thuggishness encouraged by his boss? Yes, I guess I do.
The charge can be justified on utilitarian grounds. Today I saw a cable TV news exchange regarding Fields’ complaint on CNN, where a lawyer explained that any unconsented touching is battery, and the interviewer was shocked. “What?” she said. Yes, I remember a lot of classmates in first year of law school being surprised at that too.
It’s the Common Law: nobody has a right to touch anybody else. I love that principle, myself: I don’t touch people unless I have permission, and they better not touch me. It’s per se battery, and while we usually don’t press it, we might if the batterer is enough of a jerk, or does more harm than he intended. If charging Lewandowsky makes people think twice before laying their hands on me or anyone else, good. Sending a message to discourage others from wrongful acts is always a valid reason to charge someone.
Ann asks, “Will you agree that everyone who does nothing more than that should undergo criminal prosecution?” No, and I don’t have to. I can agree that a high profile example of unconsented touching can be fairly and responsibly charged when it is being defended, as this one has been, as nothing to complain about, when unconsented touching is always worthy of complaint when it stops the victim from doing her job or is otherwise obnoxious.
Now I’ll ask Professor Althouse: Will YOU agree to repeal the Common Law disapproval of battery, and assert that unconsented touching should be approved by society and its laws?
Her next question—“Are you willing to pay the taxes to cover that?”—is beneath her: a combination straw man/ rationalization. Is she really arguing that which laws we enforce should be decided by how much money it costs to prosecute? The Clintons could have formulated that rule: never bring charges against someone who can make it expensive to make the charges stick. Are you willing to pay the taxes to charge every illegal immigrant? Well, actually, yes.
It is thinking like this that led Mayor de Blasio to double down on his defiance of the “broken window” theory, and announce that police will no longer concern themselves with public drunks and those who use the streets as their toilet. Am I willing to pay taxes to allow for sufficient enforcement of battery laws that strangers don’t think they can come up to me and grab me with no potential consequences as all?
Then this: “Are you ready to find out that you’ve already done it and you’re going to be needing to hire a lawyer?” Boy, Ann really does seem to be lobbying for a “slap, grab or pinch anyone whenever you feel like it” society. I’m not a spousal abuser, Professor, and no, that threat doesn’t trouble me at all, because I don’t touch people without their consent, and haven’t since childhood. I am confident that citizens will be less likely to harm others with violence and aggressive touching if they learn at an early age that any non-consensual touch could result in charges.
Althouse’s final sally, “Oh, but it’s so funny when it happens to somebody else, somebody you don’t like. If that’s what you think, please just admit to yourself that you are entirely morally corrupt,” doesn’t trouble me one bit. This is just an appeal to the Golden Rule, and I am very happy to be judged by the same standards as Corey Lewandowsky has been for grabbing Michelle Fields, because I would never do that,and if I lost my scruples and mind and did, I would offer my sincere regrets and apologies.