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American Justice: Wild-west, Medieval and other

Published by marco on

Wild West

The facts of the case, as described in the article Unarmed and Gunned Down by Homeowner in His ‘Castle’ by Jack Healy (NY Times) are distilled below:

“Mr. Fredenberg […] strode up the driveway […] to confront Brice Harper, a 24-year-old romantically involved with Mr. Fredenberg’s young wife. […] he walked through Mr. Harper’s open garage door […] Mr. Harper aimed a gun at the unarmed Mr. Fredenberg, fired and struck him three times. Mr. Fredenberg crumpled to the garage floor, a few feet from Mr. Harper. He was dead before morning.”

It sounds like an affair gone horribly wrong: Mr. Fredenberg uses a bit of liquid courage to help him confront his wife’s lover, Mr. Harper. Harper, fearful of a beating, gets his gun to scare off Fredenberg. One thing leads to another—as they say—and the gun is smoking, the barrel is hot and the husband is dead. In most countries, this would be a clear-cut case of manslaughter: a man was shot out of fear but the victim was in no real danger and hadn’t actually become a victim, yet. Fredenberg was not armed, his wife was in the car about a dozen meters away, and he did nothing that couldn’t be interpreted as walking into a garage to talk. Harper had every right to assume that there would be a confrontation, but kind of had to wait legally for one to begin rather than initiating it. He had his gun for protection. But, almost before anything else could happen, he fired. Even a few decades ago in the U.S. this would have resulted in Mr. Harper’s arrest, at the very least.

This, however, is a new America, where preëmptive defense has trickled down from national defense policy to the local level. Or rather it is a throwback America. It is an America that not only clings to its guns, but constantly increases the situations in which they may lethally and legally used.

“Had Mr. Fredenberg been shot on the street or sidewalk, the legal outcome might have been different. But on Oct. 9, the Flathead County attorney decided not to prosecute, saying that Montana’s “castle doctrine” law, which maintains that a man’s home is his castle, protected Mr. Harper’s rights to vigorously defend himself there. The county attorney determined that Mr. Harper had the right to fetch his gun from his bedroom, confront Mr. Fredenberg in the garage and, fearing for his safety, shoot him.”

Zimmerman shooting Martin sparked a dialogue but no action. More than 20 states now have “Stand your ground” laws that bring the Wild West to the 21st century. No other civilized country in the world has anything like it.

Accusation is nine/tenths of the law

While shooting people with no justification other than suspected trespassing and possible assault goes unpunished, other crimes are punished more and more harshly. The fallout from the drug war, with its decades-long punishments for victimless crimes. No-one is talking about this in either the media or the debates, you’ll notes. Almost equally insidious is the increased and continued punishment of so-called sex offenders: so-called because, increasingly, the burden of proof has fallen below any acceptable measure of justice and the punishments are life-long for what, in many cases, amounts to misdemeanor misunderstanding or mental illness. Punishment rather than treatment is the order of the day.

The article The Mission Creep of Rape Shield Law by Scott Greenfield (Simple Justice) talks about a case where a “divorced father [who] was allowed to see his children on weekends. [H]is relationship with his older [13-year-old] daughter was fraught with difficulties.” After one night when she didn’t come home and the “police picked her up at the home of a 16-year old boy”, he yelled at her over the phone, after which “she informed her mother that her father had sexually abused her.”

There is no evidence whatsoever that any abuse occurred at any time. Before the accusation, there was no suspicion that this was the case by any party (even the estranged wife). Soon enough, though, “younger daughter […] made a similar revelation”.

Since there is an utter lack of physical evidence—“[t]he case […] was built solely on the testimony of his daughters, with no forensic evidence behind it”—and the decision rests on her word against his, the defendant would naturally like to introduce evidence to support his story that she is acting out against him because of his disapproval of her lifestyle. To that end, he needs to describe the lifestyle of which he disapproves: the way she dresses too provocatively, hangs out with older boys and so on. Your basic teen-rebellion but escalated to the point of accusing her father of sexual abuse in retaliation for humiliating her in front of her friends. It’s a perfectly plausible explanation (especially given the history of the family relationship and his lack of priors for child abuse). Unfortunately for his case, none of this evidence is admissible because of the Rape Shield Laws. Greenfield explains:

“The Rape Shield Laws came about at a time when recognition that rape wasn’t about loose women looking like floozies giving up their right to refuse sex, but about a particular wrongful act, and the right of every woman, regardless of the height of their skirt, to say no.”

These laws are a good thing. However, as Greenfield explains, they are intended to address “consent, not credibility” and the father is clearly trying to admit evidence that his daughter(s) consented to sex with him but rather that they are not credible. But, despite one judge’s having noticed the discrepancy and issued an emphatic ruling, the Court of Appeals affirmed the conviction.

“[the] scenario [described by the prosecution] is magically transformed into accepted fact, because the alternative would be to disbelieve a female child. This just isn’t done anymore. […] we have gone so far off the deep end the other way that it’s nearly impossible, no matter how insane the contentions, to defend against the facile accusation of rape or sexual molestation.”

Life-long punishment

Finally, a bit of good news from the sphere of U.S. justice. The article Nebraska Allows Sex Offenders to Breath[e] by Scott Greenfield (Simple Justice) discusses legislative and judicial attempts to impose a lifelong ban for anyone on the sex-offender registry to

“knowingly and intentionally [use] a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use [it].”

So, basically, you’re not allowed to use the Internet in a way considered standard and almost necessary in U.S. society. Almost all social networking services allow access by minors, so almost everything would be illegal to use. And, with warrantless wiretapping de rigeur in the States—and all the more so for those on the sex-offender registry, who have already abdicated their rights regardless of whether they’ve already served their sentence and regardless of how they got on that list in the first place—it should be easy to keep tabs on these monsters.

As Greenfield goes on to say:

“Frankly, there aren’t many folks who would lose sleep if anyone remotely tainted by sex offender status was shipped off to an island in the middle of the ocean and left there to rot. Don’t bother to argue the point that these aren’t all horrible monsters; they just don’t care. […] to those who elevate their own safety at the expense of the rights of others, this law likely seems eminently reasonable. After all, these are sex offenders. Who cares what happens to them if it means my babies will be safer.”

Happily, this attempted injunction was rejected and a sex offender “who has completed his sentence, paid his debt to society, and returned in the hope […] of leading a law-abiding life […] must be allowed back into society or his sentence is never served and he will be left with no option but to engage in crime to survive.”

So, for once, a happy ending for justice, at least.