Letter 2 America for September 19, 2014

Dear America,

Please indulge me while I briefly explain a couple of legal concepts.  First is mens rea, which is one of the things that a prosecutor must prove in order to get a criminal conviction against a defendant.  Literally, it means "guilty mind" or a guilty or wrongful purpose.  So, when a prosecutor proves that a crime--an "actus reus" or guilty act-- has been committed, he must also prove that the defendant had a wrongful purpose, or a guilty mind.  Second is the distinction between "malum in se" and "malum prohibitum."  An act that is malum in se is one that is wrong in and of itself.  No one has to tell you that such an act is wrong, and there is virtually no controversy on the point.  Murder is malum in se as are kidnapping, rape, stealing and beating up another person, though they are malum prohibitum as well.  "Malum prohibitum" on the other hand refers to an act that is illegal only because it violates the law, or simply stated, one that is prohibited rather than wrong in and of itself.  Driving over the speed limit is malum prohibitum as are spitting on the sidewalk and creating a public disturbance.  In case you haven't guessed, I offer these distinctions and definitions relative to the NFL's public stance on the conduct of a couple of its players, and for that matter, the recent political stance of Democrats and Republicans on the domestic violence charges against a federal judge, Mark Fuller of Alabama, which were disposed of quietly and virtually without consequence to the perhaps not-so-honorable Judge Fuller.

The first major hue and cry was over Ray Rice of the Baltimore Ravens NFL football team in light of film of him punching his then-fiancé with a closed fist and knocking her cold.  Notably, she still married him and also excoriated his critics for meddling in a private matter.  And the case is somewhat nuanced by the fact that the film suggests that the woman who now is Mrs. Rice was striding across the elevator with the intention of doing to Mr. Rice if she could what he ultimately did to her, but that doesn't alter the fact that Ray Rice's blow was malum in se.  No one claims that a man beating a woman, regardless of the reason notwithstanding self-defense, is justified in doing so, or that his act is moral...or legal for that matter.  There are no two ways about the merit of punishing Ray Rice, though with all things considered, the question of the penalty fitting the crime--and I am referring only to the actions of the NFL and the Baltimore Ravens now--is open to debate, especially since Mrs. Rice has come out so vocally against it, probably because Rice's money is at stake...though of course her motive must be true love.  Still, no matter how Ray Rice's tagging of his soon-to-be spouse is punished by the NFL, Rice is at least nominally getting what he deserves.  But then there is this other case of a player taking a switch to his four year old child, and that one is considerably more complicated to resolve, though he has suffered the same fate as Rice at the hands of his employers, the Minnesota Vikings and the NFL.

Adrian Peterson is, like Rice, a big man, and his victim was his presumably small four year old son.  Peterson took a switch, that is a willowy branch from a tree, to his son and left marks, bruises and broken skin on the little boy while in the act of disciplining the child.  Petersen admits his act and is going to be prosecuted for it, but the case raises questions of the guilt of his mind and even whether his act was wrong in itself if you happen to believe in some fundamentalist principles that you and I might find repugnant, but that are still de rigueur among some cultural groups even in this country.  Peterson hasn't attempted to shirk responsibility, and his lawyer has let it be known that switching was the way in which Peterson was disciplined as a child, and on that basis, he did to--or under the construction favored by those who believe in corporal punishment, for--his child what had been done to, or for, him.  So, the question is, even if switching does now rise to the level of child abuse in Texas where the incident occurred, did Peterson have the requisite guilty mind, not in the legal sense, but in the context of our cultural mores.  Was Peterson trying to hurt his child, or was he trying to help him understand the difference between right and wrong for his own good.  I wouldn't presume to posit a resolution of that question for anyone else, though I do have my own opinion.  But given the nuances of Peterson's case, just as in Rice's, the question that must be answered is, does the punishment levied by his employers, the Minnesota Vikings, who have suspended him, and the NFL again, fit the "crime," and more particularly, was Peterson's act malum in se in the sense in which wife beating is.  Of course, the fact that a federal judge is getting away with beating his wife without paying a price doesn't vindicate either Rice or Peterson, though in my opinion Judge Fuller should be impeached...which is a fancy way of saying fired.

As to Rice and Peterson though, there is more than just the right to play professional sports at stake in those two cases.  The teams involved both levied sanctions against their players as did the NFL, but both teams imposed harsher sanctions once their sponsors began weighing in.  Nike made its displeasure known in the Peterson case, and the team immediately suspended him until his legal problems were resolved in response because the management wanted to "get it right," which seems to be the justification for righteous indignation that is current in sports.  What it amounts to is this: money talks even on moral issues, and big corporations like Nike have more of it than any of us do.  Thus, corporations now can influence not just elections, but employer-employee relations in quarters other than their own.  It's something to think about.  I know that I wouldn't want Nike, much less the Minnesota Vikings and the NFL, deciding how I should discipline my child, would you?

Your friend,

Mike