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society, we would be constantly looking over our books to remove bad laws, clarify unclear ones and modify or remove outdated ones.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.