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Comment: Re:Mens Rea (definition) (Score 1) 130

Mens rea is a legal phrase used to describe the mental state a person must be in while committing a crime for it to be intentional.

Almost. Literally it means "guilty mind." But you only mention intent, and there are levels of "guilty mindedness" besides "intent." Such things include:

Negligently: "A reasonable person should know not to do this because of the potential for harm."
Recklessly: "The defendant knew this would likely result in harm but did it anyway."
Knowingly: "The defendant knew this would almost certainly result in harm and did it anyway."
Intentionally (or purposefully): "The defendant wanted harm to happen, and so did this."

This determines how culpable a person is for a crime. And something done accidentally has no mens rea, no guilty mind, and therefore committed no crime. Hence, the "mens rea requirement" for a given law is the definition of how culpable a person must be in order to be found guilty.

It can refer to a general intent to break the law or a specific, premeditated plan to commit a particular offense.

Also not quite. It's not your state of mind with regards to the law. It's your state of mind with regards to the thing the law proscribes.

Lots of people have no idea what the actual sexual assault laws are in their state. They're wildly different state to state. For instance, in Arizona you can be convicted of rape for having sex with someone who you know is or should have known is too drunk to provide meaningful consent, even when the intoxication is self-administered. I bet a lot of people go to SXSW or something and hook up with drunk people with no idea they've opened themselves up to prosecution for rape. The prosecutor will not have to prove that they intended to break the law, or even knew what the law was. Only that they knew or should have known their sex partner was too drunk to consent and did it anyway. Essentially, "proceeded with a negligent or reckless attitude towards consent."

It's about your state of mind with regards to the proscribed act (sex with someone unable to provide meaningful consent because drunk), not your state of mind with regards to "violation of chapter 13-1404 of the state of Arizona penal code." This is what we mean by "ignorance of the law is no excuse."

Comment: Re:A victory for internet trolls (Score 1) 130

All depends on context.

Threats are a tricky thing. We must protect free speech and artistic expression. However, "true threats" are never and can never be protected speech. This is different from merely offensive speech.

Offensive: "You're a dick."

Potentially threatening: "I'm going to kill you, dick."

Offensive can be ignored, and should never be a crime. Truly threatening, however, cannot be ignored, and must be a crime.

But "I'm going to kill you, dick" is only potentially threatening. It also depends on context. If I said that to you right now, no one would believe that was a true threat. I don't know you. I don't know where you are. I have no reason to kill you. Even if I do know you and we're in the same room it's still not necessarily a true threat. Would a reasonable person assume I'm joking, or engaged in hyperbole? And not what you think. Doesn't matter what the person hearing the "threat" thinks. This is an objective test about what a "reasonable person" would think. This prevents a standard called an "eggshell observer."

So for something to be a true threat, a reasonable person would have to feel that they were in danger for their life or of personal injury. So lots of little boxes that you can check off to help add up to "true threat." Know the person? Check. Near the person? Check. Reason (legitimate or otherwise) to want this person dead? Check. Threat of specific action? Check.

  His claim of "therapy" and "catharsis" don't fly. You cannot hurt others and say "no, it's fine, it's helping me." Perhaps what he finds cathartic is terrorizing others. The only possible way out here is "artistic expression."

So the question is, is this artistic expression? Or is this a sadist intent on terrorizing his ex-wife hiding behind the guise of artistic expression?

Elonis cited Eminem's song "Kim" as an example of what he was trying to do. In this song, Em graphically describes murdering his ex-wife, Kim. He's clearly talking about her, specifically. He says the specific horrific things he will do to her. He knows her, knows where she lives, and has cause (in his mind) hate her and want her dead. It's really, really close to a true threat.

Does anyone doubt that if, instead of performing the song, Eminem wrote it on a piece of paper and mailed it to her and her alone, that would constitute a true threat?

However, instead, Em recorded it and performed it for strangers. So I can say, in Em's case...artistic expression. But I don't doubt that thoughts of "is he serious? Do I need to fear for my life?" crossed Kim's mind. They would cross mine, and that of any reasonable person if someone they knew hated them that much said those things about them.

So somewhere between "mail a copy to only the person you say you want to kill" and "perform in front of millions" is the cut-off between "true threat" and "artistic expression."

Where does Elonis lie? I don't think he actually recorded or performed his raps. It was just on FaceBook. Which is semi-private. It would be easier to say "art" if it were on a public blog, open to anyone. But to say these things in a place where the vast majority of listeners know the subject, and it will certainly be passed along to her? Close. Close, close.

So were these "true threats?" Doesn't matter if he would actually do it or not, just something that a reasonable person would believe he would do. While yes, whether or not the recipient of the "threat" feels threatened or not is immaterial (no eggshell observers) the fact that so many people who knew him took the threats seriously (his boss fired him for threats against coworkers, the wife got a restraining order, his friends and family informed the authorities about what he was saying multiple times), it would seem unless everyone who knows him is "unreasonable," then a reasonable person would take his words seriously enough to act. So, I wouldn't have any difficulty saying that he did in fact communicate threats. Unless everyone around him is "unreasonable" and so is the jury who convicted him, then he communicated threats.

But was he intentionally trying to threaten? (did he want people to fear for their lives?) Or reckless? (knew people probably would fear for their lives and didn't care?) Or merely negligent? (truly didn't think anyone would take him seriously, and is therefore innocent. Stupid, but truly meant no harm?)

If I were the prosecutor I would argue that he was at least reckless. It's impossible to say that he didn't know people would fear for their lives. He got fired, his ex-wife got the restraining order, people called the cops on him multiple times. And the instant the FBI agent left his house after talking to him he goes back online and posts more of the same stuff! Whether he intended to cause people to fear for their lives or not, he clearly knew lots of people were fearing for their safety or the safety of others, and he kept doing it. He didn't care! Reckless!

There is this one little wrinkle. He did multiple times post between rants that he was not serious, was no threat, and was just using this as artistic expression and "therapy" (which he sorely needs).

So if I were the defense, I'd argue that yes, he knew people were fearing for their safety. Which is why he posted disclaimers that there was no seriousness behind his words. This means he had no guilty mind. He knew people were bothered, and took steps to assuage their fears. He was, however, too stupid to realize they'd still be scared. He should have known better. And this makes him merely negligent, and not criminal.

Then it would be up to the jury to decide if his protestations outweigh his threats.

Comment: Re:A victory for internet trolls (Score 2) 130

No, that's not the case at all. You've never had to show intent to carry out the act. This was about the state of mind with regards to making the threat.

Does the government have to show that you:

1) Intended to threaten? (what Elonis argued it should be)

2) Threatened recklessly? (what it probably is)

3) Threatened negligently? (what the judge in Elonis' case instructed the jury to decide)

And the court said "negligently isn't enough." We don't know if the appropriate standard is recklessness or intent, though. Court fucked us by not deciding that. So lower courts and trolls are left wondering.

Comment: Re:Does this mean... (Score 1) 130

"the girl told me she was 18 and even showed me her driver's license with the age" will see no mercy as statutory rape generally has strict liability rules.

Depends on the state. Some states that's a valid excuse depending on the age of the minor. For instance, Arizona 13-1407 Section B:

B. It is a defense to a prosecution pursuant to sections 13-1404 and 13-1405 in which the victim's lack of consent is based on incapacity to consent because the victim was fifteen, sixteen or seventeen years of age if at the time the defendant engaged in the conduct constituting the offense the defendant did not know and could not reasonably have known the age of the victim.

Sections 1404 and 1405 are the ones defining sexual abuse/assault of a minor.

This one of the problems with arguing about rape laws on the internet. Every state is different, and states have wildly different laws. I'd say it comes up most often when talking about consent while drunk. People will argue that having sex with a drunk person who later claims rape is bullshit, because they still said "yes" and others will argue that it's not bullshit. Depends on where you are. For instance, to mention Arizona again, yes, you can be mentally unable to provide meaningful consent due to intoxication, even if the intoxication is self-administered. DO NOT FUCK DRUNKS IN ARIZONA. Oh, and since "but your honor, I was drunk" is never an allowed defense, for anything, you can be "too drunk to give consent" in Arizona, but never "too drunk to rape." So, just getting drunk and fucking in Arizona is a terrible idea.

However, in Florida, fuck, you can be blitzed to the moon, unable to stand, but if you're conscious and don't mumble the word "no," go to town! Unless the intoxicate was administered against your will or without your knowledge.

Just sayin', everywhere's different.

Comment: Re:Good ruling (Score 5, Insightful) 130

Not a retrial, yet. They remanded it back to the 3rd circuit to figure out what to do with the guy.

And I think the court screwed up. I agree with Justice Alito (I just finished reading the court opinion). They sent it back to the 3rd circuit but didn't give them a clear guide on what to do.

The issue is this:

1) "True threats" are not constitutionally protected. They never have been, never will be. "I can say whatever I want" ends when a reasonable person hearing what you say becomes afraid for their safety. And rhyming doesn't make it okay. It will never be protected to call up a school and say "roses are red, violets are blue, you're dead and all the kiddies are too." That's going to justifiably freak a lot of people out. This is not the same thing as merely being offended. I mean actually threatened.

2) Elonis was convicted on four out of five counts of violating 18 U. S. C. 875(c), which makes it a federal crime to transmit in interstate commerce "any communication containing any threat . . . to injure the person of another."

3) The problem is there's no mens rea requirement in that. The lower courts instructed the jury that mere negligence is enough. "He should have known people would be threatened by this."

4) Elonis argued that criminal law very rarely works that way. Negligence is a fine standard in civil and tort law. But to actually punish somebody for crime, they need to have knowledge that what they were doing was wrong. "Should have known better" isn't good enough. Elonis argues that they need to establish that he intended to threaten. (Not intended to carry out the threat. Intended to threaten.)

5) Elonis is right in that. He got a bum deal on the negligence standard. That isn't good enough. But there's another standard between "negligence" and "intent" and that's "reckless." Recklessness is a reasonable standard by which to merit criminal punishment. That would be "knew it would probably make people afraid for their lives and did it anyway." Is that a reasonable standard for mens rea for this law?

6) The majority decision didn't address recklessness. They just said "it wasn't really argued by either side and the lower courts didn't rule on recklessness." However, that's...wrong. Both sides did bring it up in oral arguments, Elonis obviously saying "no, there has to be intent" and the state saying "who cares, negligence is enough." They could have decided they didn't have enough information to answer that question and gone back to the parties for further briefing and argument. But they just said "nope, not saying."

7) So where does that leave the lower courts, and users of social media? What IS the standard whereby one may be convicted of threatening others? All the Supremes will say is "not negligence." But now we don't know if the standard is actually recklessness or intent. Thanks a lot guys!

As an aside...Dear Congress: Please always write the mens rea requirements into each law so the courts know what standard to apply and don't leave them to guess. Thanks! xoxo, monkeykins.

So now the 3rd Circuit will figure out what to do with him. I don't know what that will be. His conviction under the negligence standard is overturned. I think the only way to reapply a recklessness standard would be with a new trial. The problem was the jury instructions, so you need a new jury. I don't think there's a double jeopardy issue, because this would essentially be a mistrial, stemming from action instigated by the defendant. But then the question is, "what should the jury instructions be this time?" Don't know!

My guess would be "recklessness," and it could kind of go either way.

He clearly knew lots of people were taking the things he was saying in the way he was saying them seriously. He made threats against his coworkers and his boss fired him. He made threats against his wife and she found them credible enough to get a restraining order. He made threats against schools that his FaceBook friends found credible enough to call the police. Seeing all of this response, he still kept going, making threats against the FBI officer who came to see him about the other threats. He definitely knew what he was doing was making lots of people afraid for their lives, and he kept doing it. That's reckless.

However, there is one little mitigating factor: he also repeatedly made posts indicating that his tirades were works of fiction, meant for "therapy." (and boy does he need it...). Now, that indicates that he definitely knew people were afraid, and had been taking his threat seriously.

If I were the prosecutor, I would argue this means that he knew people were taking his threats seriously, and he continued to make them, recklessly.

As the defense, I would argue that yes, he knew people were taking his threats seriously, but by acknowledging that and reassuring people that they were not serious, he was no longer reckless and therefore innocent of wrongdoing. The fact that people didn't believe him means the harm he continued to cause was merely negligent, but that's not enough for a conviction.

And then it would come down to what the jury thinks of the seriousness of his threats versus the seriousness of his reassurances he had no ill intent.

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