Well, I’m still waiting for the wave of op-eds and pundit pieces condemning the judge in the Dennis Hastert case for somehow turning the ex-Speaker’s trial for breaking banking laws into a trial for child molestation even though he couldn’t be charged with that crime.
I appear to be one of the very few people alarmed by this. Coming at a time when we have a Presidential candidate advocating the imprisonment of financial traders without any indications that they broke actual laws, this qualifies as a bona fide societal virus, and a potentially dangerous one.
Over at Popehat, habitual Ethics Hero Ken White flagged another outbreak that somehow I missed (I blame Fred).
It seems that an Oklahoma court rejected the prosecution of a teenage boy for engaging in oral sex with a teenage girl (she was, to be delicate, the oral recipient) who was passed out drunk, and the Court of Criminal Appeals agreed, ruling:
“Forcible sodomy cannot occur where a victim is so intoxicated as to be completely unconscious at the time of the sexual act of oral copulation. We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language.”
Ken begins, tongue hard in cheek,
“Did you hear? Oklahoma said it’s legal to rape someone if they’re unconscious from drinking! They said it’s not rape at all! It’s classic victim-blaming! It’s outrageous! It’s rape culture! It’s just what you would expect from one of those states!”
He then examines the statutes involved. It turns out that the unimaginative legislature, when defining the crime of forcible sodomy which was what the boy was charged with, missed this set of potential facts. She wasn’t forcibly raped, because she wasn’t conscious.
“There was no normative judgment about rape. Nobody suggested that people who drink are asking for it. The normative judgment was about criminal procedure: if the law doesn’t prohibit something, then you can’t convict someone of it (or, in this case adjudicate a juvenile as delinquent).”
This undeniable fact didn’t stop critics of the decision reacting with outrage that the court refused to act on the spirit of the law.
The prosecutor, Benjamin Fu, said he was “flabbergasted” by the decision, and argued that the court should have applied the intent of the law to a case the legislature had not anticipated. “This does not reflect our laws, the temperament of our Legislature or the values or beliefs of Oklahoma,” Fu said.
It may not “reflect” the law, but the courts obeyed the law. People should not be prosecuted under laws that don’t specifically designate the conduct involved as illegal, no matter how wrong it is.
Fu should know this, and I suspect he does. He botched the prosecution, charging forced sodomy when the criminal statute on sexual assault would have applied to the defendant’s crime. This result was therefore his fault, and he should have the integrity to admit it.
In sympathy with Fu was Scott Biggs, an Oklahoma state representative, who accused the court of making a “grave error.” “Unfortunately, legal minds often get stuck on questions of semantics, when it is clear to most of us what the intent of the law is,” Biggs said in a statement.
Watch out for these people, who lurk on both sides of the ideological divide, many in places of power, like the White House. When they feel they are in the right, the fact that the law happens not to support them is seen as no just obstacle. Twist the law to meet the objective, rather than follow the letter of the law. It isn’t as if the U.S. doesn’t have too many laws already, we have elected officials insisting that laws also can be used to accomplish what they don’t even mention.
We will come to miss Antonin Scalia more than we know. “Getting stuck” on what words mean is why lawyers exist: without rigorous insistence that laws are clear and only enforced within their words, a totalitarian government can use laws as weapons to restrict our personal liberty by extrapolating their meaning and intent.
“Colloquially and morally, the defendant is a rapist. Under Oklahoma law, he’s not,” writes Ken. “The problem is with the statute — so fix it. The problem isn’t with our failure to convict people for things that aren’t already illegal.”
Yes, yes, I know, you merciless ones. I know I praised Chief Justice Roberts for saving the Affordable Care Act from the destruction such a sloppy piece of legislation so richly deserves when he found the individual mandate to be a tax and not a penalty, even though the Obama Administration had insisted that it wasn’t a tax. Justice Scalia was enraged, and you may well ask how I can reconcile my salute to Roberts’ courage with my post today.
I’m sure I can do it, but damned if I know how at the moment…