The Law is the Law

I want to address a point that came up in our discussion of the the Kaitlyn Hunt case last week (which is turning out to be a little more complicated than my initial post). No one questions that Kaitlyn was in literal violation of the law. She was an 18-year-old who has sexual contact with a 14-year-old, which is illegal in Florida (and most other states). So shouldn’t we enforce the law? Whatever we may think of the law, she broke it and should be punished, right?

Let’s pull back a moment from that particular case into the broader legal issue. There is a school of thought that says that we should enforce all the laws without exception. If a law is badly written, we should change it. But refusing to enforce a law or making an exception to the law that is not written into it is the pathway to anarchy. That used to be my philosophy but I’ve come to realize that such a rigorous approach puts us on a short road to legal disaster.

The problem is best illustrated in this excellent cartoon. First, we have thousands of laws that apply to any of us at any time. It is almost impossible to go through your life without having violated one of them. We have bureaucrats who are constantly extending not just the law but very real criminal sanctions for violating those laws. Second, we have abandoned the concept of mens rea, that someone had to have had evil intent in violating the law. And so we end up with a situation where a woman picks a father up off the ground and end up with felony charges for violating the Migratory Bird Act.

In an ideal society, we would be constantly looking over our books to remove bad laws, clarify unclear ones and modify or remove outdated ones. But we don’t live in that society. On the contrary, we live in a society where bureaucrats are constantly pushing the boundaries of law and politicians are afraid to change obviously bad laws for fear of being pilloried. Sex offender laws are a perfect example. We’re putting children on these things and ruining their lives. But no politician is willing to do anything about it because they don’t want to be branded as sympathetic to child molesters (even though molesters are a small fraction of those on the registers).

To prevent innocent people from being gobbled up by bad laws, we used to fall back on Common Law. We recognized that laws are not written on stone tablets by God, but crafted by men. As such, they are imperfect and can not anticipate every eventuality. Bureaucracies specifically tend to see things in a very narrow light. So we used to apply common sense to law enforcement, recognizing when someone might be technically violating the law but it made no sense to prosecute them. We recognized that the law is not an end in an of itself. The law is a means. The end is justice. What would be just about putting a woman in prison for picking up a hawk feather?

We should enforce our laws. But we also need to recognize when a law is unjust or when it is simply inappropriate to a situation. We’ve gotten away from the idea that judges and juries are supposed to judge both the case and the law. We think only the Supreme Court can judge laws. But jury nullification and prosecutorial discretion are in the very DNA of this nation, from when juries and prosecutors refused to enforce the King’s unjust laws. Putting someone in jail for violating a badly written law and only then changing the law is like mapping out a minefield by stepping on all the mines.

The Hunt case, specifically, is a little more complicated than her supporters let on. But the general point stands. We should not become robots mindlessly enforcing laws in a Napoleonic fashion. The intent of the law is to protect young teenagers from being taken advantage of by grown adults. If the law is threatening felony charges against a high school senior for having consensual sex with a high school freshman (14 and 18 years old, not 15 and 17), I would submit that the law is faulty. And it is the duty of the prosecutors, the judge and the jury to recognize that and account for that.

“But we need to be a society of laws, not men!” Yes. But if we become a society of rigid adherence to every law on the books, we will all end up in prison. We will all find, whenever the authorities don’t like us, that we have violated some obscure law intended for some completely different purpose. We will find that a federal law intended to protect migratory birds from being hunted to extinction is jailing some lady who picked a feather up off the ground. We will find that sex offender registries intended to protect us from predators ruin the lives of 12-year-old kids. We will find 16-year-old girls who take nude pictures of themselves prosecuted for child pornography. We will find that laws intended to stop 50-year-old men from taking advantage of naive 14-year-old girls snare high school seniors instead.

The law is not perfect. Nor is not perfectible. Let’s not pretend that it is. The question in the Kaitlyn Hunt case — and in any similar case — should not be if she technically violated the law since she clearly did. The question should be if applying the law in this case is just. I’m witholding judgement now since some of the information circulated by her supporters has turned out to be inaccurate (H/T to Thrill for fact-checking me on that). But “that’s what the laws says so … too bad” is simply not enough when it comes to a potentially life-ruining prosecution.

Comments are closed.

  1. Seattle Outcast

    Hell, I’m pretty sure I commit a felony most days of my life without ever knowing it.

    There are TOO MANY LAWS, most of them should be tossed. Having so many laws merely makes it easy for police or regulators to quickly create a laundry list of things for you to be arrested for. If you make political enemies, there are literally tens of thousands of possible crimes to prosecute you for.

    The only thing that prevents this from happening on a massive scale is the sheer logistical problems of doing so. But perhaps they out to try – then people would realize on a personal level how out of control it is and take a chainsaw to the problem.

    Quite honestly, we NEED very few laws – but there is always somebody that wants to make something a crime, or regulate some behavior they find offensive (but does no actual harm), and politicians find themselves with very little to do if they aren’t out there taking bribes and passing new laws and more regulation. They see making laws as their primary job, and the rest of governing just shit for their staff to take care of.

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  2. Xetrov

    There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that’s the system, Mr. Reardon, that’s the game, and once you understand it, you’ll be much easier to deal with.

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  3. Miguelito

    I agree with the larger point you’re making, but I think you’re making a mistake linking this to the Hunt case. Her’s isn’t a case of not knowing the law or anything similar, if the facts that have come out in the last week or two are at all true, she was told by numerous people that she shouldn’t be in a relationship with the other girl due to age differences, but she did it anyway. Things do change when you’re 18 and I think you’d be hard pressed to find anyone that has turned 18 who hasn’t been told about statutory rape laws in some form.

    I’m not even sure I agree that the law shouldn’t apply in this case. 18 and 16, even that I can maybe see as ok, if they were together for a time. But 18 and 14? I’m not so sure. If we make it 14, it’s guaranteed that someone will want push it to 13 soon, then down even more. You used the “HS senior and freshen” well what if a 12 year old is skipped ahead and is a freshmen? Hey.. they’re in the same HS. You do need to make some age judgment calls at some point and these laws are NOT ones that are obscure which nobody knows about like the ones in the linked cartoon (a cartoon that I actually agree with).

    Oh, and just to add (again).. the whole attempt by her supporters trying to link it as a huge LGBT issue is really just stupid.

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  4. Miguelito

    There are TOO MANY LAWS, most of them should be tossed.

    2 changes that should be done that would help immensely, not only with law bloat but with our monetary issues:

    1. Single issue laws limited in size. i.e. no riders, no mixed laws. No 1k page (*cough*Obamacare*cough*) laws either, they should be readable by everyone in a time frame of at least 3 days or so, heck, require all laws (final form) to have to sit for some minimum time before they can be voted on so the public has a chance to read them.

    2. All laws expire. Have some form of automatic expiration date on ALL laws passed. Anything that’s common sense and needed will be simple to renew before each expiration, right?

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