This column is about “reactionary laws” – not laws that
are a part of some right-wing conspiracy, but laws that are enacted as
a reaction to shocking news stories. The message to those whose common
response to outrageous behavior is “there should be a law”
is – be careful what you wish for.
In response to reports of abusive parents who starved and locked their
children in closets or intentionally inflicted cigarette burns, we now
have laws protecting children. But the laws may be interpreted to remove
children from their home because the parents spanked them or even yelled at them.
Because we wanted to protect children from public embarrassment, confidentiality
laws were passed to prevent disclosures in children’s court cases
of alleged child abuse. The result is that errors made by social workers
and abuses done to children who are supposed to be given protection are
seldom reported. The confidentiality laws do far more to protect the improper
and negligent conduct of those paid by the government than they do to
The public reacted to stories of men severely beating women. The result
is a series of laws against domestic violence.
However, current law interprets domestic violence to include such things
as pushing someone away who is screaming in your face or even just holding
them back. Under existing law any restraint of a person, even for their
own protection, may be considered domestic violence.
Because of our concern about terrorists we have laws against terrorist
threats. In actual practice, these laws are almost always applied to family
and personal arguments. A person could be charged with making a terrorist
threat because they shook their finger at the “victim” in
a threatening manner. The “victim” could even be a former
boyfriend or girlfriend who initiated the contact and argument. Bail for
such crimes is typically $50,000.
In family law, a conviction on a domestic-violence charge gives legal advantage
to the other party in a custody battle. The result is that many domestic
violence charges are engineered.
To protect people from rapists, the public demanded laws to require dangerous
sexual predators to register as sex offenders after their jail time was
completed. Current laws may require one to register as a sex offender
because as a college student the person mooned someone and pleaded to
indecent exposure. A young man may be required to register as a sex offender
because he had sex with a 17-year-old, even if the teenager initiated
the sexual encounter.
Often laws are written to increase the penalties based on what conduct
was used in the course of the crime. Rape with a foreign object should
fall into this category. However, the way our laws are written, a foreign
object includes a person’s fingers.
We want to protect our hospitals from terrorist assaults, so there is a
law that provides a mandatory five years in prison for having an explosive
devise near a hospital. The explosive device could be a large firecracker
locked in your trunk, which was left over from a New Year’s celebration.
To get families off of welfare we demand laws to compel parents to pay
court-ordered support. Now failure to pay support may automatically result
in loss of a person’s driver’s license. Loss of a driver’s
license often leads to loss of employment and inability to collect back
support. But the law is the law.
We don’t want suspected dangerous criminal roaming the streets. We
demand high amounts of bail so the accused will have a difficult time
getting released from jail before a trial. In practice, this often means
the prosecutor and the court will offer to allow someone out of jail only
if they plead guilty or no contest to a charge. If they don’t there
will be no release without bail and the person will have to stay in jail
until after the trial.
People who were arrested, kept in jail pending a trial and released only
after the jury finds them not guilty are not entitled to compensation
for their time in jail.
Attorneys are often compelled to have their clients enter a plea even when
they believe in their innocence. Our U.S. Constitution prohibits unreasonable
bail. Isn’t any bail unreasonable if the prosecutor and the court
would release the accused based on a plea bargain?
Next time you find yourself reacting to a crime, catastrophe or other horror
story, think twice before you conclude, “there ought to be a law.”