Thursday, April 02, 2009

Romeo and Juliet, Abraham and Isaac: Who to criminalize?

While waiting yesterday in the House Criminal Jurisprudence Committee hearing for a late bill on which I was testifying, Rep. Garnet Coleman brought forward two very interesting pieces of legislation worthy of note:
HB 3564: Relating to the prosecution of certain conduct constituting the offense of indecency with a child.

HB 2973: Relating to the insanity defense in a criminal case.
HB 3564 would expand the "Romeo and Juliet" defense (consensual sexual partners are within three years of one another's age) to indecency with a child to include gay relationships, or as Rep. Debbie Riddle put it, adding a "Romeo and Romeo" exception.

Throughout all the discussion of the "Romeo and Juliet" exception to the so-called "Jessica's Law" in 2007, that oversight certainly never occurred to me, and I watched the process pretty closely. Good catch.

Coleman's second bill, HB 2973, focuses on a topic discussed here recently on Grits in the context of Andre Thomas, the schizophrenic death row inmate who murdered his family then plucked out both his eyes and ate one: Whether the test for legal insanity should be simply whether the defendant "knows the difference between right and wrong." NAMI-Texas said the current definition is so narrow as to be "meaningless."

Under Coleman's proposed redefinition, it would be an affirmative defense to prosecution if an actor with a severe mental illness or defect "was unable to appreciate the nature and quality of the actor's conduct" or did not "appreciate that the actor's conduct was legally or morally wrong."

Rep. Miklos raised the objection that saying someone's conduct was "morally wrong" was a subjective standard, that everyone's definition of morality may be different. Chairman Gallego added that everyone on the dais likely had a different moral view of abortion, which could make "morally wrong" a moving target.

But George Parnham, a criminal defense lawyer testifying for the bill, did a good job of explaining the standard. He compared the subjective nature of the standard to defendants claiming "self defense" as an affirmative defense in a murder case. When assessing "self defense," juries are asked to consider the relative danger of a situation from the perspective of the shooter. Similarly, if a severely mentally ill person hears voices they believe to be God commanding them to do something, for example, since disobedience to God is wrong in the moral construct of the mentally ill individual, a killer following such "divine" instructions would qualify for the affirmative defense.

The discussion centered mostly around the Andrea Yates case - the mother who drowned her five children in a fit of postpartum psychosis believing it would save their immortal souls.

Somehow, as the discussion went on, I found myself thinking of the story of Abraham in the Bible, ordered by God to take his son Isaac to the top of the mountain and sacrifice his life. Abraham dutifully took Isaac to the appointed spot and tearfully raised his blade, ready and willing to plunge it into the body of his only progeny, when Divine Intervention stayed his hand. Abraham serendipitously found a goat whose horns were stuck in the brambles and sacrificed it instead.

No one else was there with Abraham to verify this story on the mountaintop, but from a modern perspective, we would not be surprised to discover Abraham was a schizophrenic hearing voices he believed to be God. Perhaps it's only by chance of fate that he didn't end his filial line at that moment rather than siring the Jewish people. I found myself wondering how the story about nearly killing Isaac would be viewed if Abraham were evaluated today by a mental health professional? It's as though Andrea Yates had decided at the last minute not to drown her children and instead founded a religion.

Such theological matters aside, Coleman's proposed definition reflects a medical understanding of mental illness rather than taking a black and white, "right and wrong" approach to mental-illness driven tragedies. He referred to current law as the "Hinckley Standard," reflecting changes made to various state laws in the '80s as a backlash after John Hinckley tried to assassinate President Ronald Reagan and was found not guilty by reason of insanity.

Andrea Yates' story, said Coleman, brought that reactionary standard back into focus and inspired this bill. Yates' defense lawyer was one of the witnesses testifying. Another gentleman related a heartwrenching tale of his step-daughter's struggle with schizophrenia and the religious delusions that led her to attack her father with a bow and arrow before she was shot by her father's officeworkers and police. A terrible story. I felt awful for the poor guy and his family.

The committee had an interesting and informative discussion on the subject of people who, as Judge Cathy Cochran wrote recently about Andre Thomas, are "clearly 'crazy,' but ... also 'sane' under Texas law."

I liked both bills. You can watch the video here, beginning at the 4:17:45 mark.


Rage Judicata said...

Interesting take on the founding of Judaism. I guess it would be too far off-topic to want to investigate most Republicans under this standard.

I do think 'morally' right would be too broad. And I'm less than impressed with Parnham, who was more interested in Yates' book rights than in her defense. I see where his analogy was goiing, but it just doesn't cover it. Being a defense lawyer, he's more than happy to have the vague nature of morality in order to argue the defense in the future. The only reason I wouldn't object too strongly is because it may even the playing field in Texas, which is long over due.

doran williams said...

Can this one if you want to, Grits, but I never let a chance go by to quote Dylan on Abraham:

God said to Abraham, kill me a son.
Abe said Man you must be puttin me on.
God said No.
Abe said Whut?
God said you can do whatchya want Abe, BUT
Next time you see me comin you better run.
Abe said where d'ya want this killin done
God said out on Highway 61.

Gritsforbreakfast said...

You're showing your age, Doran. ;)

BB said...


A person who receives such instructions from God is undoubtedly sufferring from a mental illness. God would never tell someone to do such a thing.

Morality is not as relative or subjective as many may think. Even those in most third world countries understand and agree that unjustifiable homicide is wrong. When societies engage in homicidal conduct that is not consistent with this universal truth the rest of the world responds by indicating that said behavior is an exception to our universal values.

Consider for example the abortion analogy mentioned in this discussion. The positin taken by people who support abortion revolves around this core value - life is sacred and unjustifiable homicide is wrong. They suggest that life does not begin until the actual birth occurs which therefore justifys abortion to them as an exception to the rule.

Morality is defined as the consitent practice of ethical conduct in our daily lives. It is not that we have different values or understand them differently, it is simply that some violate the rules and then rationalize the conduct.

Legislation which prohibits capital punishment for those who are found by professionals to lack the capacity for moral understanding is indeed worthy of consideration.


JTJP said...

Well, maybe there really is a God who does talk to people authentically. A theologian or existential philosopher just might have a different perspective than a shrink and it may not be so "obvious" that the person is suffering from psychosis or delusions.

Of course few psychiatrist today, even the Christian or Jewish variety, would have the guts to publicly say it was anything but psychosis. Our problem today is that none of us would likely wouldn't recognize Gods' voice even if it were real. We have become too distanced from our own souls and too distracted by our own scientific realistm, to trust such an experience and label it as an authentic occurance.

As with Abraham and Issac, the dilemma is presented by the stark and limited choice. Abraham had to chose either to Believe with every part of his being that it was God talking, or acknowledge that he was just a crazed child killer and needed to get off on the act.

When you read the story in the Bible, you must face the same choice about beleiving that it was literally true, or just a very interesting story about a nut who liked to scare and confuse his first born. It comes down to the question of what do we believe.

BB points out that lots of societies, even primitive ones) exhibit what could be considered universal values acknowledging that killing and stealing are wrong, even if we do them anyway.

So now we have to address ethical, moral, and legal culpability of sex between children. The law is based on assumptions about victimization, vulnerability and desireable human behavior. The vocal majority, right or wrong, determine what laws passed.

An example of a wrong law would be those that supported slavery and racial inequality in Texas about 75years ago. So laws can reflect both the evolution and de-evolution of a societies value system.

The gay rights folks say that being gay is not a choice. The Christian Conservative Right says it is, but even if it's not, it's a sin. Who is politically strong and loud enough to influence legislation on this matter?

One potential problem or issue that comes to mind with regard to HB 3564, is with Youth on Youth acts of sexual intercourse. The literature indicates that teenagers of both sexes experiment with consensual peer sexual activity (male-female; female-female; and male-male). Most of these kids are not acting out as homosexuals though they are engaging in homosexual acts in some cases. Do we prosecute them as criminals? What do we "believe" is acceptable behavior during the teen years? Is it different once you turn 12? 13? 17? 18? What is magical about a three year age difference between participants? Why not 4 or 5 years? How about a 5 year old having sex with a 9 year old? How about a 10 year old female having sex with a 5 year old male? Aren't they all still "children", lacking the ability to appreciate the illegal nature of their actions?

I'm playing the devil's advocate here to point out that much of our beliefs and the laws that follow from them are very subjective indeed. Let us pray..........

Anonymous said...

damn dorian - you beat me to it! Highway 61 Revisited. Grits is probably too young to remember but since he's hung around lefties all his life, he's probably heard it.


BB said...

Some very good insights. The study of ethics preceded religion, and their is no such thing as legal ethics. My favorite professor said it best,'There is no such thing as legal ethics'. The laws do not make people do good things. You are also correct in your discussion of unjust laws written and approved by those in positions of authority.

Lex unjusta non est lex.


Charlie O said...

Why is it, in Texas, that if so-called God tells you to kill your children, you're crazy. But if the devil, or your invisible rabbit Harvey tells you to kill your children, you're just evil? Texans seem to think that if you believe you're hearing the voice of god, it's excusable, but if it's the voice of Harvey, strap'em down and and stick'em.

Don said...

JTJP: that's quite an essay and provokes thought. One thing though, prepubescent children don't really have sex. They might go through the motions in emulating or experimenting, but a 5 year old boy can't get 'er done. This is also the distinction between pedophilia, which is an abnormal sexual turn-on for adults by children, and normal sexual desires, even though one or the other may be not legally of age. Sex may then become illegal, but not abnormal, as romeo and juliet. (and the 20 year old guy with the 16 year old gf.

jan said...

Please see regarding Romeo and Juliet cases.

BW said...

Wow, at times I forget how hard liberals try to prove they really can discount goodness, fairness, and the fundamentals which this country was founded on. I am a Christian, I believe in the almighty God and our Lord Jesus Christ. I am conservative. I also believe that a person with a persistent and severe mental illness should NOT be executed but should be held accountable for ending another life. We have forensic hospitals which should house and treat these offenders-LONG TERM. (Notice how I can believe a person is mentally ill without persecuting God). I have provided care to persons experiencing religious delusions. I have also sat beside the bed of a dying 9 year old whose last words included that he talked to Jesus and he wasn't afraid anymore. A person unafraid to explore who they really are, admit it unashamedly, and is not afraid of what he doesn't believe, can see the truth in both instances.

And a 5 year old may not be able to have the sex a 35 year old can, but the idea that this should allow the act is just too sad, twisted, and distorted for words. Defining the difference in pedophilia and normal sexual desires to defend or justify children having sex is telling of the fate of children influenced by adults with these beliefs. Sex amongst children is abnormal. Shame on you.

sunray's wench said...

BW said "sex amongst children is abnormal"

The term 'child' is a relatively recent legal definition of a particular age group. Pre-1800s children as we think of them today had no status as such, they were just considered to be little adults in the making. When you have laws to cover prohibition of certain behaviours, but all set at different ages (driving, drinking, fighting for your country, having sex, voting, etc) is it any wonder that people (teens, adults, anyone) throw their hands in the air and do it all anyway? There is NOTHING magical between being 15 and 364 days old and being 16 years old. It is just a legal definition.

Laws like these do not actually protect anyone, they just criminalise certain behaviours.

Anonymous said...

Sunray's Wench:

Laws should criminalize behaviors, that is what they are designed to do. Does this surprise you? And no, there is nothing magical about the one day reference, however as a whole society we should recognize the difference between children, adolescents, and adults. Those that throw their hands in the air are the ones who continue to sanction 13 year olds getting abortions and 11 year olds smoking pot. Get real, for crying out loud. Don't assume I haven't read my fair share of text books and know when we quite engaging 5 year olds in sex acts as routine and forcing 10 year olds to work 18 hour days in factories. Again, that laws criminalizing behaviors thing...keep up. If you need a definition to know when a child is a child you are beyond the guidance of a blog.