Monday, February 19, 2007


Advocating for the devil

In the film Minority Report, the premise is that the authorities have three people with precognition, and when those “precogs” foresee a murder the police are sent to arrest the perpetrator before the crime is committed. A murder has to be predicted by at least two of the precogs, and the title of the movie comes from what they call a situation where the third contradicts the other two, presenting a “minority report”.

Of course, we don't do that sort of thing, for real. We don't arrest people because we think they're going to commit a crime. We can watch them, and we can protect those we think will be their victims. But we can't arrest them if they haven't committed a crime. Unless, of course, we think they're terrorists, in which case our president has declared that he can do whatever he wants with them. But this commentary isn't about that.

It's about the question of whether it's right to arrest someone because he thinks he's committing a crime, though he isn't actually doing what we're arresting him for. Huh? Doesn't that sound weird?


Suppose you meet a young woman, age 19, and you like her, and you decide you want to have sex with her. You do the sweet talk, she goes home with you, you get your wish. And then you get a visit from the police, because it turns out that she isn't 19; she's 15, and she told her parents. And you've committed a crime. It doesn't matter that you thought she was 19, it doesn't matter that you thought it was all legal. What matters is that she is in fact 15, and you are now a sex offender.

Now let's turn it around.

Suppose the authorities are looking for pedophiles. They get a 19-year-old agent to get on some Internet chats and pretend to be 15. You take the bait, you do the sweet talk, you get her to agree to meet you. When you get there, you suggest sex. She suggests arrest.

But here's the thing: you haven't done anything illegal. You thought you were doing something that's illegal — you thought you were soliciting sex with a 15-year-old. But the fact is that you were propositioning a 19-year-old, and there's nothing illegal about that. How can you be arrested, when you have not actually committed a crime?

This technique is used all the time. In general, I support getting these people off the streets and to psychiatric help. I support protecting the children they would prey on.

But I question the technique's adherence to our ideals. We do not arrest people for what they intend to do, but only for what they do. How can we square that with this situation? How can we arrest the guy for intent, but not deed?


Dr. Momentum said...

He didn't just intend to do something, he attempted to do it. That's what he's being arrested for.

He's being arrested for his actions, not his intentions.

Barry Leiba said...

Did he? It seems to me that what he attempted to do (not what he thought he was attempting to do) was to have sex with a 19-year-old.

Suppose the guy at your local Kwik-E-Mart keeps a metal box on the counter next to the register. Thinking (as you tell your buddy, who later testifies against you) that it has at least $10,000 in it, you snitch it while he's not looking, but get caught by the cops as soon as you pick it up, 'cause they've been watching that Kwik-E-Mart for thieves. It turns out that the box just has Apu's lunch in it.

Are you guilty of petty theft (the lunch), attempted petty theft (you didn't actually manage to steal it), larceny ($10,000), or attempted larceny? It seems that James is arguing for attempted larceny, yes? Do any of these wrinkles change that?:

1. You had no way to know what was in the box, and just guessed that it was a lot of money.

2. You once asked Apu what was in it and he told you it had $10,000, but he was just having you on.

3. You asked Apu what was in it and he told you it had $10,000, but the cops substituted the lunch when they planned to catch you.

4. You saw money in it once, when he opened it briefly.

5. Take your buddy out of the picture. The cops had no idea what you thought was in the box.

Sib said...

I agree and Chris Hansen and co. with their "To catch a predator # 10,000" isn't helping matters either...seems like sensationalism carried to an extreme.

But interestingly, they do arrest the folks that show up - wonder what the charges are though?

Dr. Momentum said...

My point is that conflating "intend" with "attempt" creates a problem that doesn't actually exist.

I can sit here and intend all I want, but until I attempt something, I'm guilty of nothing. Even if I attempt to hatch a plan with others to do something, I am conspiring, which is a form of attempting -- the middle ground between intention and successfully pulling off a number of crimes.

We have criminalized certain kinds of attempts, not intention. Whether we can discern what the attempt was is a question for the court, which is why we have courts.

The nuances are important, which is why they get codified into laws.

If you merely want my opinion, I say he is guilty of attempted larceny because (as you describe it) he certainly did attempt to steal $10,000.

Whether the cops know or not is inconsequential to the hypothetical. We certainly know, because it's in your description.

To be clear: yes, if I am sure that someone attempted to steal 10,000 smackeroonies, they are guilty IMNSHO of attempted larceny.

Anonymous said...

A confession (ie, "I did it") is concidered useful in a prosecution. A denial ("I didn't do it") isn't concidered useful.

There's certainly the crime of "attempted murder" without the actual murder having occurred.

Thus, the crime is "attempted sex with a minor".

Anonymous said...

"attempted murder" guy again.

Keep in mind that the "intended sex with a 15 year old" isn't a "simple mistake". The large effort to get to the place where they are arrested is a strong confirmation of the attempt to commit an illegal act. (The "large effort" is intentional).

Anonymous said...

I'm supposing that in some way you are referring to the 'To Catch A Predator' series on NBC. While, like you, I'm glad to see these people off the street, I have to wonder if they are getting some deal for releasing NBC to run the video (or doesn't NBC need that release?) I also have to wonder how many get fully convicted for what they are charged. Finally, I wonder what it makes of us to commercialize the whole thing--honey look, brian peters is catching some sickos again, let's pop a bag of popcorn....

Dr. Momentum said...

There's a TV show about catching predators?

I guess they're trying to help the predators evade capture.

Barry Leiba said...

Yeah, like James, I had no idea that there was such a program on TV until it was mentioned in the comments here. I still know nothing about it, but I'd be bothered if it's commercializing such a hideous thing... or, alternatively, if it's encouraging vigilanteism.

This wasn't posted in reference to any TV show, but just as something I've been mulling over for a year or two now. I still worry a little about the legal issues behind it, but James has gone a long way to convincing me that it's not just an "end justifies the means" thing, and that there's some validity to arresting people in such situations.

Anonymous said...

Dateline NBC: To Catch A Predator--has been running for quite a while now. They have an undercover agent from an outfit called 'Perverted Justice' that gets on the internet and gets into chat rooms and chats with guys and then at some point tells them they are underage. If the guy continues to chat eventually it seems they setup a sting operation where they get the guy to come to a house, and once they walk inside, Chris Hansen comes out and interviews them...usually along the lines of 'What are you doing???? You know she was underage? What were you thinking?' Then, they are told they are free to go, but as soon as they step outside, they are arrested.

Interestingly enough, some of the predators apparently have watched the show and know right away what's happening.

Apparently, they are taking it a step further now and changing the formula--they are tracking down the predators at their home. I didn't know this, until I was talking to a coworker today and it looks like one of the suspected predators...when they showed up at his house --shot himself.

Again, many of these people have bad intentions, and they show motive to follow through (bringing condoms, sending naked pictures, showing up with ropes etc). What isn't clear is how they are prosecuted afterwards...especially the ones that just show up and don't have hard proof of intention.

Perhaps the Dateline website above has more information on how the cases are followed through and how the video gets released or even if it needs to be. I'm not sure what rights an accused/criminal person has especially when as far as he knows he is entering a private home.

Barry Leiba said...

Thanks for the explanation of the TV program. Interesting. I wonder how it would go down if someone arrested on the show claimed, as a defense, that he suspected that the program was involved, and was just playing along.