tag:theconversation.com,2011:/africa/topics/laws-19512/articlesLaws – The Conversation2024-03-24T11:52:13Ztag:theconversation.com,2011:article/2238152024-03-24T11:52:13Z2024-03-24T11:52:13ZAddressing deepfake porn doesn’t require new criminal laws, which can restrict sexual fantasy and promote the prison system<figure><img src="https://images.theconversation.com/files/582946/original/file-20240319-28-spiry0.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C6240%2C4156&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Deepfake pornography plays a role in sexual fantasy and expression.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>After <a href="https://www.theverge.com/2024/1/25/24050334/x-twitter-taylor-swift-ai-fake-images-trending">deepfake pornography of Taylor Swift went viral</a> on the social media platform X (formerly Twitter), <a href="https://www.thecut.com/2024/01/taylor-swift-ai-deepfake-trending-social-media.html">Swifties sprung into action</a>. They organized to report violations of X’s “<a href="https://help.twitter.com/en/rules-and-policies/manipulated-media">Synthetic and Manipulated Media</a>” policy and flooded the platform with real images of Swift in an attempt to alter X’s algorithm.</p>
<p>The incident <a href="https://www.theguardian.com/music/2024/jan/26/taylor-swift-deepfake-pornography-sparks-renewed-calls-for-us-legislation">renewed calls for federal legislation</a> regarding deepfake porn. But whether we need to “<a href="https://www.wired.com/story/taylor-swift-deepfake-porn-artificial-intelligence-pushback/">defeat</a>” deepfake porn by <a href="https://www.theverge.com/2018/2/7/16982046/reddit-deepfakes-ai-celebrity-face-swap-porn-community-ban">censoring</a> and <a href="https://www.theguardian.com/society/2023/jun/27/sharing-deepfake-intimate-images-to-be-criminalised-in-england-and-wales">criminalizing</a> it is up for debate — or at least it should be. </p>
<p>As a criminologist and sexuality studies scholar with expertise in the <a href="https://carleton-ca.academia.edu/LaraKaraian">legal regulation of sex and sexual expression</a>, the push to conflate deepfake porn with misogyny and sexual harm is concerning, as is the call for new criminal laws.</p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/GgSduzVDV08?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">ABC News looks at the circulation of fake explicit images of Taylor Swift on X.</span></figcaption>
</figure>
<h2>Are deepfakes sexual violence?</h2>
<p>Deepfake refers to the use of artificially intelligent (AI) machine-learning applications to generate original but “fake” audio, images or videos that may appear authentic. Deepfake pornography (DFP) refers to products that are sexually explicit in nature. </p>
<p>According to a <a href="https://www.homesecurityheroes.com/state-of-deepfakes/#key-findings">2023 report by cybersecurity firm Home Security Heroes</a>, DFP makes up 98 per cent of all deepfake videos online, and 99 per cent of DFP features women. Notably, 94 per cent of these women work in the entertainment industry. </p>
<p>An <a href="https://regmedia.co.uk/2019/10/08/deepfake_report.pdf">earlier study of DFP by Deeptrace Labs</a> found that of those in the entertainment industry, most of the 10 most frequently represented individuals were actresses from western countries, followed by South Korean K-pop singers.</p>
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Read more:
<a href="https://theconversation.com/ai-can-now-create-fake-porn-making-revenge-porn-even-more-complicated-92267">AI can now create fake porn, making revenge porn even more complicated</a>
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<p>Given their gendered, sexual and seemingly “non-consensual” nature, DFP has been widely described as gender-based sexual violence requiring <a href="https://www.congress.gov/bill/117th-congress/house-bill/9631/text?s=1&r=79">greater civil and criminal regulation of both AI and deepfake porn producers</a>. </p>
<p>Others, however, suggest that deepfake porn may be <a href="https://cardozolawreview.com/deeply-fake-deeply-disturbing-deeply-constitutional-why-the-first-amendment-likely-protects-the-creation-of-pornographic-deepfakes/">deeply constitutional</a> sexual expression, and that new laws should be put off until more research about the impacts of pornographic deepfakes on those depicted, as well as on internet users, can be conducted. </p>
<p>Deepfake porn raises concerns about false representations — for instance, falsely depicting an individual as sexually active, into a certain type of sex or involved in the porn industry. Whether this constitutes sexual violence — even if a person is distressed by fake videos of them — is not self-evident.</p>
<p>Many valid reasons exist for why deepfake porn may be created and shared, and why it should not be interpreted or criminalized as “<a href="https://theconversation.com/ai-can-now-create-fake-porn-making-revenge-porn-even-more-complicated-92267">image based sexual abuse</a>” or “<a href="https://www.brookings.edu/wp-content/uploads/2016/05/sextortion1-1.pdf">virtual rape</a>.” These reasons include, but are not limited to the social value of sexual fantasy — including seemingly “deviant” fantasies — and the need to resist prison expansionism and the carceral state.</p>
<h2>Need for new laws?</h2>
<p>Deepfakes, as with the <a href="https://www.wired.com/story/meta-youtube-ai-political-ads/">cheapfakes</a> that preceded them, can be created for malicious purposes including harassment, spreading disinformation and extortion. In instances where the use of one’s image is deeply upsetting to the individual depicted, legal avenues such as civil privacy, intentional infliction of emotional distress, invasion of privacy laws that address “<a href="https://canlii.ca/t/sxjg">false light</a>” (making false or misleading claims about a person that cause harm to them) and take-down orders may help address their concerns. </p>
<p>When it comes to deepfake porn and minors, Canada’s child pornography and its <a href="https://laws-lois.justice.gc.ca/eng/acts/C-46/section-162.1.html">Intimate Images</a> provisions likely apply. And in cases where DFP images and videos are used to harass or extort individuals, laws already exist to address these harms. On or offline, however, there are reasons to resist <a href="https://doi.org/10.1093/socpro/spz013">pro-criminalization strategies</a>.</p>
<p>Queer and sex-radical feminists have long established that even though sex and gender are related, theories of gender oppression cannot wholly explain <a href="https://read.dukeupress.edu/books/book/1560/chapter/173938/Thinking-SexNotes-for-a-Radical-Theory-of-the">sex and sexual politics</a>. Importantly, <a href="https://doi.org/10.1080/15313204.2018.1474827">anti-sexual violence feminists and anti-carceral scholars</a> have pointed out the limits and harms of using criminal law to respond to sexual violence for sexual violence victims, the accused and society more broadly. </p>
<p>Before we can determine whether sexual violence is the best framework for describing and responding to deepfake porn, we need a better understanding of deepfake porn prosumers — those who produce, consume and share their creations — as well as the importance of sexual fantasy, at the individual and collective levels.</p>
<h2>Deepfake porn prosumers</h2>
<p>It’s becoming increasingly difficult to interview or conduct research with deepfake porn prosumers given how widely they are described as <a href="https://www.washingtonpost.com/technology/2018/12/30/how-fake-porn-opponents-are-fighting-back/">depraved</a>, as the embodiment of “<a href="https://doi.org/10.1080/23268743.2019.1675091">toxic geek masculinity</a>,” and as driven by an interest in <a href="https://www.vice.com/en/article/nekqmd/deepfake-porn-origins-sexism-reddit-v25n2">owning women’s bodies</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/583169/original/file-20240320-20-zoul2p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="a man is silhouetted against a computer screen showing blurred out images" src="https://images.theconversation.com/files/583169/original/file-20240320-20-zoul2p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/583169/original/file-20240320-20-zoul2p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=495&fit=crop&dpr=1 600w, https://images.theconversation.com/files/583169/original/file-20240320-20-zoul2p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=495&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/583169/original/file-20240320-20-zoul2p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=495&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/583169/original/file-20240320-20-zoul2p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=622&fit=crop&dpr=1 754w, https://images.theconversation.com/files/583169/original/file-20240320-20-zoul2p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=622&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/583169/original/file-20240320-20-zoul2p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=622&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Given what we know about the demographics of computer programmers and porn consumers, it’s likely that most DFP prosumers are men.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<p>Research suggests, however, that many deepfake porn creators are hobbyists who are more interested in contributing “to the development of such technology as <a href="http://doi.org/10.22215/timreview/1282">solving an intellectual puzzle</a>… rather than as a way to trick or threaten people.” </p>
<p>It’s likely that most deepfake prosumers are men, given what we know about the demographics of <a href="https://datausa.io/profile/soc/computer-programmers">computer programmers</a> and <a href="https://www.statista.com/statistics/661314/gender-distribution-of-pornhubcom-website-traffic-in-selected-european-countries/">porn consumers</a>.</p>
<p>Insights from clinical practice suggests that when men do create “fake porn” misogyny rarely serves as a key motivator. Clinical psychologist David J. Ley observes that more of these cases are “driven by <a href="https://www.psychologytoday.com/ca/blog/women-who-stray/201901/the-psychology-behind-fake-porn">feelings of loss, shame, hope, and fantasy</a> than by misogyny and anger.” Similar to Photoshopped “porno collages,” deepfakes serve as a means to explore fantasies that are likely impossible to fulfill.</p>
<p>But is sexual fantasy a valid reason to create and share deepfake porn on public and paid platforms? </p>
<h2>Sexual fantasy and deepfakes</h2>
<p>Sexual fantasy is <a href="https://doi.org/10.1177/13634607221106667">more complicated</a> and more <a href="https://doi.org/10.1037/0033-2909.117.3.469">important to our sex lives and to our social well-being</a> than people typically realize or acknowledge. For many, sexual fantasy is private and limited to their mind’s eye. </p>
<p>Others, however, see sexual fantasy as something to be <a href="https://scholarship.law.wm.edu/wmlr/vol58/iss2/3">manifested as written text, images or digital files, and publicly shared</a> for free or for a fee. </p>
<p>Critical race feminist scholars have demonstrated that <a href="https://doi.org/10.15767/feministstudies.41.2.409">sexual fantasy is both a product of and productive of our complex realities</a>, but that a line can also be drawn between fantasy and reality given the important roles that fantasy plays in our individual and collective lives.</p>
<p>At the individual level, <a href="https://doi.org/10.1111/jsm.12734">a study that surveyed 1,516 adult cis men and women about their sexual fantasies</a> found that more than half of the respondents — 51.7 per cent of women and 61.9 per cent of men — fantasized about sex with a celebrity.</p>
<p>Sexual fantasy research has also helped establish that few sexual fantasies are statistically unusual or rare. This includes fantasies which have previously been deemed perverted or <a href="https://doi.org/10.1111/jsm.12734">atypical</a>, such as <a href="https://www.bloomberg.com/news/newsletters/2023-11-29/us-federal-laws-fail-to-protect-most-deepfake-pornography-victims">those that involve violence or humiliation</a>. These fantasies are not only common, but are also “<a href="https://doi.org/10.1016/j.copsyc.2022.101496">unlikely to be revealing of actual behavior</a>.”</p>
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<a href="https://images.theconversation.com/files/583173/original/file-20240320-24-adu4i5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="two pairs of women's legs wearing heels in red lighting" src="https://images.theconversation.com/files/583173/original/file-20240320-24-adu4i5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/583173/original/file-20240320-24-adu4i5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=373&fit=crop&dpr=1 600w, https://images.theconversation.com/files/583173/original/file-20240320-24-adu4i5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=373&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/583173/original/file-20240320-24-adu4i5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=373&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/583173/original/file-20240320-24-adu4i5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=469&fit=crop&dpr=1 754w, https://images.theconversation.com/files/583173/original/file-20240320-24-adu4i5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=469&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/583173/original/file-20240320-24-adu4i5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=469&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Fantasy plays an important role in individual and collective lives.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
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<p>According to Ley, <a href="https://www.psychologytoday.com/ca/blog/women-who-stray/201901/the-psychology-behind-fake-porn">reasons for publicly sharing sexual fantasies</a> range from seeking approval, demonstrating technical prowess and playing with taboo to bonding with those who share the same interests or to arouse others in the way they are aroused so as to feel less alone for having these interests and desires. </p>
<p>As legal scholar Andrew Gilden writes: </p>
<blockquote>
<p>the actual process of coming to terms with one’s sexual identity often entails extensive fantasizing, experimentation, education, and social interaction. And these processes <a href="https://scholarship.law.wm.edu/wmlr/vol58/iss2/3/">are often far less romantic</a>, much less ‘dignified,’ and far less ‘PG’ than envisioned by the evolving legal narratives of sexuality.</p>
</blockquote>
<h2>Consent and fantasy</h2>
<p>Thinking about deepfake porn through the lens of sexual fantasy also helps us make sense of lack of consent in DFP. Consent does not factor into people’s sexual fantasies in the same ways as it does their physical sexual relations: I don’t need permission to fantasize about someone, but I do need permission to have sex with them. </p>
<p>Consent is a primarily <a href="https://www.leaf.ca/news/the-law-of-consent-in-sexual-assault/">legal term</a>, that, at its most general, means voluntary agreement to engage in sexual activity. The use of consent language to refer to the creative process of DFP as “image-based sexual abuse” or “virtual rape” shuts down a <a href="https://www.upress.umn.edu/book-division/books/sex-and-harm-in-the-age-of-consent">nuanced conversation about sexual harm and freedom</a>. </p>
<h2>Expanding definitions</h2>
<p>Ultimately, sexual fantasy cannot fully explain the phenomenon of deepfake porn. But failing to acknowledge the limits of gender-based sexual violence frameworks comes with its own harms, including the ever-growing definition of sex crime and the <a href="https://doi.org/10.1093/socpro/spz013">expansion of the carceral state</a>.</p>
<p>We need to think carefully about the social and cultural motivations and intent of content creators, in addition to the potential effects of their creations. We need to consider whether expanding the scope of criminal law to address emotional harm in virtual spaces will bring about the changes we want to see, including the reduction of sexual violence. We also need to acknowledge that criminal law has largely failed to prevent, and indeed <a href="https://www.ucpress.edu/book/9780520385818/the-feminist-war-on-crime#:%7E:text=In%20their%20quest%20to%20secure,and%20diverting%20resources%20toward%20law">perpetuates, emotional and physical violence at a level that requires great awareness and care</a>. </p>
<p>Concerns about sexual autonomy should inform debates about emerging technologies, but alternative frameworks for making sense of and responding to deepfake porn should be considered before we censor and criminalize deepfake porn producers, consumers and products.</p><img src="https://counter.theconversation.com/content/223815/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lara Karaian receives funding from the Social Sciences and Humanities Research Council.</span></em></p>Deepfake pornography raises questions about consent, sexuality and representation. The issue is more complicated than online misogyny — new criminal laws are not our best response.Lara Karaian, Associate Professor, Criminology and Criminal Justice, Carleton UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2216772024-02-12T13:24:56Z2024-02-12T13:24:56ZCan anyone make a citizen’s arrest? The history and legalities of catching criminals yourself<figure><img src="https://images.theconversation.com/files/574490/original/file-20240208-28-q5mmu6.jpg?ixlib=rb-1.1.0&rect=0%2C6%2C4600%2C2452&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Can you detain someone you just saw break the law?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/man-mugging-woman-in-street-royalty-free-image/BC3542-001">Alan Thornton/The Image Bank via Getty Images</a></span></figcaption></figure><figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=293&fit=crop&dpr=1 600w, https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=293&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=293&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=368&fit=crop&dpr=1 754w, https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=368&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=368&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p><em><a href="https://theconversation.com/us/topics/curious-kids-us-74795">Curious Kids</a> is a series for children of all ages. If you have a question you’d like an expert to answer, send it to <a href="mailto:curiouskidsus@theconversation.com">curiouskidsus@theconversation.com</a>.</em></p>
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<p><strong>Can anyone make a citizen’s arrest, even me? – Henry, age 12, Winter Hill, Massachusetts</strong></p>
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<p>What does Spider-Man do when he sees someone commit a crime and there are no police officers around to help? He swings in, wraps the wrongdoer in his web and leaves them hanging from a telephone pole until the cops take over. </p>
<p>But is he allowed to do that? Are you?</p>
<h2>Seizing criminals</h2>
<p>Until about 200 years ago, uniformed police officers and police departments as we know them today <a href="https://time.com/4779112/police-history-origins/">didn’t exist in the United States</a>. It was up to the citizens to arrest criminals.</p>
<p>In 1285, England introduced what we now know as “citizen’s arrests” in a law called <a href="https://study.sagepub.com/rowe3e/student-resources/chapter-3/the-statute-of-winchester">the Statute of Winchester</a>. It allowed any person to arrest – in other words, capture – lawbreakers. This concept spread throughout the English colonies, which ultimately became their own countries, including Australia, Canada and the United States. Other <a href="https://en.wikipedia.org/wiki/Citizen%27s_arrest">countries have adopted similar rules</a>.</p>
<p>In the United States, citizen’s arrests have a pretty dark history. Originally, <a href="https://www.fastcompany.com/90528764/the-troubling-history-of-citizens-arrests-from-slave-patrols-to-ahmaud-arbery-to-ice">only white men could make citizen’s arrests</a>. By the mid-1600s, many militias and city watchmen, especially in the South, used that power to <a href="https://www.fastcompany.com/90528764/the-troubling-history-of-citizens-arrests-from-slave-patrols-to-ahmaud-arbery-to-ice">intimidate and terrorize enslaved and free Black communities</a>.</p>
<p>This practice continued <a href="https://racism.org/articles/law-and-justice/criminal-justice-and-racism/134-police-brutality-and-lynchings/9617-a-legacy">through the Civil War</a>, <a href="https://historynewsnetwork.org/article/175619">the Jim Crow era and even into the 1900s</a>, with vigilantes – people who appoint themselves to catch and punish others – engaging in heinous abuses, <a href="https://theconversation.com/lynching-memorial-shows-women-were-victims-too-95029">including lynchings</a>. Just recently, in 2020, Ahmaud Arbery, a Black man who was jogging around his Georgia neighborhood, <a href="https://theconversation.com/jury-finds-3-georgia-men-guilty-of-ahmaud-arbery-murder-3-essential-reads-172493">was shot and killed</a> by a group of white men who accosted him because they wrongly thought he had committed a crime.</p>
<p>Despite this history, most states still have citizen’s arrest <a href="https://www.washingtonpost.com/nation/2021/11/05/ahmaud-arbery-citizens-arrest-vigilante/">laws on the books</a>.</p>
<h2>Making a legal citizen’s arrest</h2>
<p>Arrest literally means “to stop.” If someone wants to leave, you usually can’t stop them – that could be considered false imprisonment or even kidnapping. Citizen’s arrest laws are an exception to that general rule; they allow everyday people to make an arrest.</p>
<p>When the police make an arrest, they typically handcuff the subject and take them in a secure transport vehicle to a booking facility, such as the county jail. When Spidey webs a wrongdoer, he can’t just take them back to Aunt May’s apartment. Making a citizen’s arrest means holding the lawbreaker in place until the police arrive and take over.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/574491/original/file-20240208-24-qtcx1d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A blurry, dark black-and-white picture of a figure holding what could be a knife, or something else entirely" src="https://images.theconversation.com/files/574491/original/file-20240208-24-qtcx1d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/574491/original/file-20240208-24-qtcx1d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/574491/original/file-20240208-24-qtcx1d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/574491/original/file-20240208-24-qtcx1d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/574491/original/file-20240208-24-qtcx1d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/574491/original/file-20240208-24-qtcx1d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/574491/original/file-20240208-24-qtcx1d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">You’d better be sure about what you think you saw.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/man-holding-knife-in-kitchen-rear-view-silhouette-royalty-free-image/588312130">Glasshouse Images/The Image Bank via Getty Images</a></span>
</figcaption>
</figure>
<p>When can someone make a citizen’s arrest? The rules are a bit different in every state, which can make things confusing. You can ask a librarian to help you find information about the law in your state, but here are some common requirements to get you started:</p>
<p><strong>Who can make a citizen’s arrest?</strong> Although some state laws use the word “<a href="https://www.scstatehouse.gov/code/t17c013.php">citizen</a>,” most states allow any “<a href="https://statutes.capitol.texas.gov/Docs/CR/htm/CR.14.htm">person</a>” or any “<a href="https://www.revisor.mn.gov/statutes/cite/629.37">private person</a>” – as opposed to a public employee such as a police officer – to make a citizen’s arrest. Despite the name, you usually don’t have to be a citizen. And most states don’t require any minimum age, so it looks like high school student Peter Parker, Spider-Man’s alter ego, is good to go.</p>
<p><strong>Did you see it, and how serious is it?</strong> Most states allow you to make a citizen’s arrest for a minor crime – those <a href="https://www.britannica.com/topic/crime-law/Classification-of-crimes">categorized as a misdemeanor</a> – only if you actually saw the person commit the crime. Some states allow a citizen’s arrest for a minor crime only if it is considered a “breach of peace,” meaning the crime is likely to disturb other people, such as fighting in public. For felonies, a more serious category of crime, the law usually allows you to make a citizen’s arrest even if you didn’t see the person commit the crime.</p>
<p><strong>You’d better be sure!</strong> In most states, citizen’s arrest laws apply only if the person actually committed a crime. If you make a mistake by making a citizen’s arrest of someone who didn’t actually commit a crime, the <a href="https://www.findlaw.com/injury/torts-and-personal-injuries/false-imprisonment.html">person you arrested can sue you</a>. You might even get <a href="https://www.law.cornell.edu/wex/false_imprisonment">arrested</a> yourself!</p>
<p>This is different from when police arrest someone. Law enforcement officers need “<a href="https://www.law.cornell.edu/wex/probable_cause">probable cause</a>,” which is the legal standard for how sure you need to be that a person committed a crime before arresting them. As long as an officer meets the probable cause standard, they won’t get in trouble, even if they’re ultimately mistaken about the person committing a crime.</p>
<p><strong>Try not to rough anyone up.</strong> Someone making a citizen’s arrest is usually allowed to use a reasonable amount of physical force to ensure that the lawbreaker stops committing the crime and can’t leave. But that doesn’t mean you can do anything you want. The type and amount of force you use must be <a href="https://nyupress.org/9781479814657/evaluating-police-uses-of-force/">closely related</a> to whether the other person is trying to get away and, if so, what they’re doing.</p>
<p><strong>Just because you can doesn’t mean you should.</strong> Making a citizen’s arrest is no joke. There’s the danger of making a mistake about what the person did and whether it was a crime. After all, most people don’t know exactly what the law allows or prohibits, so it’s easy to get something wrong.</p>
<p>And there’s the danger of getting hurt. Most people aren’t trained or equipped to arrest someone safely, and they rarely have backup available like the police do. If you see a crime occur, it’s better to call the police and be a good witness than it is to try to make a citizen’s arrest yourself. </p>
<p>So, what do you think: Is Spider-Man allowed to make a citizen’s arrest? And if he is, does that make him a hero or a vigilante?</p>
<hr>
<p><em>Hello, curious kids! Do you have a question you’d like an expert to answer? Ask an adult to send your question to <a href="mailto:curiouskidsus@theconversation.com">CuriousKidsUS@theconversation.com</a>. Please tell us your name, age and the city where you live.</em></p>
<p><em>And since curiosity has no age limit – adults, let us know what you’re wondering, too. We won’t be able to answer every question, but we will do our best.</em></p><img src="https://counter.theconversation.com/content/221677/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Stopping someone against their will can be false imprisonment or even kidnapping. There are laws that determine who is acting as a hero and who is acting as a vigilante.Seth W. Stoughton, Professor of Law, University of South CarolinaCaroline McAtee, Law Student at the University of South Carolina School of Law, Research Assistant for the Excellence in Policing and Public Safety Program, University of South CarolinaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2192262023-12-06T11:20:55Z2023-12-06T11:20:55ZWhat is the government’s preventative detention bill? Here’s how the laws will work and what they mean for Australia’s detention system<p>After a week of non-stop headlines, the government’s preventative detention legislation <a href="https://www.abc.net.au/news/2023-12-06/preventative-detention-legislation-has-passed/103197024">passed</a> the lower house, just in time for the end of the sitting year.</p>
<p>The new laws will allow former immigration detainees to be re-detained if they are judged to pose a high risk of committing serious violent or sexual crime.</p>
<p>The legislation comes after a 20-year legal precedent was overturned in November, when the <a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court found</a> the government could not detain people indefinitely – regardless of whether they had a criminal history. </p>
<p>The High Court’s decision was celebrated by <a href="https://humanrights.gov.au/about/news/media-releases/commission-commends-high-court-ruling-indefinite-immigration-detention">human rights organisations</a> and some <a href="https://www.theguardian.com/commentisfree/2023/nov/09/australia-mandatory-indefinite-immigration-detention-regime-high-court-decision">legal scholars</a>. It was seen as a rare opportunity to reshape Australia’s immigration detention policies in line with international law, the constitutional separation of powers, and principles of procedural justice and proportionality. </p>
<p>Yet the opportunity for much-needed reform has been frustrated by political point-scoring. The opposition and tabloid media have stirred up moral panic about the release of “<a href="https://www.smh.com.au/politics/federal/dutton-demands-apology-for-o-neil-s-claims-he-voted-to-protect-paedophiles-20231130-p5eo3l.html">hardened criminals</a>”. Anxious to avoid accusations of being “soft”, the government has adopted the same discourse. </p>
<p>Both the government and opposition agree it is necessary to put “dangerous” people back behind bars to protect the community. In a clear break from parliamentary process, the vote on the legislation was scheduled for a <a href="https://www.theage.com.au/politics/federal/teal-mps-slam-perversion-of-democracy-on-immigration-laws-20231206-p5epeg.html">non-sitting day</a>, giving parliamentarians little opportunity to scrutinise or debate the legislation. </p>
<p>So what do these laws actually do, what do they mean for those most affected by them, and what is being lost in the current debate?</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">View from The Hill: government's announcement tsunami overshadowed by crisis over ex-detainees</a>
</strong>
</em>
</p>
<hr>
<h2>What are preventative detention laws?</h2>
<p>The new laws will allow the immigration minister (currently Andrew Giles) to apply to a court to re-detain people who have been released from immigration detention. </p>
<p>For an application to be successful, <a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">two conditions must be met</a>. </p>
<p>First, the person must have been convicted of a crime (either in Australia or overseas) that carries a sentence of at least seven years’ imprisonment. </p>
<p>Second, the court must agree the individual poses “an unacceptable risk of committing a serious violent or sexual offence”, and that there is “no less restrictive measure available” to keep the community safe. </p>
<p>The involvement of the courts in making these decisions is a welcome safeguard in the context of a detention system in which people are routinely incarcerated for years or even decades without court oversight. The minister’s previous “<a href="https://www.nswccl.org.au/time_to_review_immigration_minister_god_like_powers">god-like powers</a>” in this area have been widely criticised. </p>
<p>Yet the human rights implications of detaining people who have already served their time are <a href="https://www.smh.com.au/politics/federal/former-security-watchdog-labels-preventative-detention-laws-a-disgrace-20231201-p5eof6.html">significant</a>. Re-detention is likely to be experienced as a secondary punishment, which is contrary to principles of proportionality and procedural fairness. </p>
<p>It is also notable that these laws only apply to people who are not Australian citizens. </p>
<p>Australians with the same criminal histories and risk profiles will not be subject to preventative detention under this legislation. This raises concerns about the laws’ validity, with some suggesting the targeted nature of the legislation may leave it vulnerable to a <a href="https://theconversation.com/view-from-the-hill-governments-announcement-tsunami-overshadowed-by-crisis-over-ex-detainees-219215">High Court challenge</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699">High Court reasons on immigration ruling pave way for further legislation</a>
</strong>
</em>
</p>
<hr>
<h2>Why were these laws brought in?</h2>
<p>On November 8, the High Court of Australia <a href="https://eresources.hcourt.gov.au/showCase/2023/HCA/37">ruled unanimously</a> that if there is no real prospect of a person being deported in the forseeable future, it is unlawful for the government to detain them indefinitely.</p>
<p>The case was brought by a Rohingya man, known as NZYQ, who was no longer eligible for an Australian visa after being convicted of a sexual crime. As he’s a member of a <a href="https://www.hrw.org/tag/rohingya">persecuted minority</a>, he could not be deported back to Myanmar.</p>
<p>With no visa and <a href="https://www.theguardian.com/australia-news/2023/nov/07/nzyq-immigrant-australia-resettle-attempt-high-court">no country</a> willing to accept him, he had been moved into indefinite immigration detention after completing his prison sentence in 2018.</p>
<p>The court’s decision triggered the release of more than <a href="https://www.afr.com/policy/economy/number-of-freed-detainees-reaches-141-20231126-p5emtv">140 people</a>, <a href="https://www.abc.net.au/news/2023-12-06/fourth-person-arrested-after-detainee-released/103197184?utm_source=abc_news_app&utm_medium=content_shared&utm_campaign=abc_news_app&utm_content=other">four of whom</a> have since been arrested for various alleged crimes. </p>
<p>People with no criminal history – including a man who had spent <a href="https://www.hrlc.org.au/news/2023/11/30/ned-kelly-emeralds-free#:%7E:text=Ned%20Kelly%20Emeralds%2C%20an%20Iranian,that%20indefinite%20detention%20was%20unlawful">more than a decade</a> in detention after coming to Australia in search of asylum – were also among those released. </p>
<p>The government has already imposed <a href="https://www.theguardian.com/australia-news/2023/nov/18/draconian-conditions-come-into-effect-for-93-foreigners-released-after-being-illegally-detained-by-australia">strict conditions</a> on the freed individuals, including ankle bracelets and curfews.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">The High Court has decided indefinite detention is unlawful. What happens now?</a>
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</em>
</p>
<hr>
<h2>What is being missed in the current debate?</h2>
<p>Prior to the High Court’s decision, refugees, people seeking asylum, stateless people and other non-citizens without a valid visa were regularly subject to indefinite mandatory detention. <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">As of August 2023</a>, Australia held 1,056 people in immigration detention; the average duration of detention was 708 days. </p>
<p>Unlike prisons, immigration detention centres are officially administrative and not for punishment. That is, people are not held in these facilities as part of a criminal sentence, but to facilitate health, security and identity checks, and to enable visa processing or removal from the country.</p>
<p>In the almost 30 years since Australia introduced indefinite mandatory detention, tens of thousands of people have been subject to this policy. Among those detained have been <a href="https://humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014">thousands of children</a>, whose detention continues to be permitted under Australian law. </p>
<p><a href="https://bristoluniversitypress.co.uk/visiting-immigration-detention">Conditions in detention</a> are often punitive, and have been subject to regular <a href="https://www.smh.com.au/national/limitless-detention-of-refugees-is-inhumane-and-must-end-says-un-torture-watchdog-20230414-p5d0et.html">international criticism</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/futile-and-cruel-plan-to-charge-fees-for-immigration-detention-has-no-redeeming-features-183035">'Futile and cruel': plan to charge fees for immigration detention has no redeeming features</a>
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</em>
</p>
<hr>
<p>The current debate about immigration detention glosses over these realities. It obscures the profound humanitarian implications of the High Court’s ruling. </p>
<p>It also ignores the urgent need for further reform to ensure innocent people (including children) are not unduly punished. And it rationalises ongoing incarceration - beyond the terms of a criminal sentence - as a valid response to non-citizens who have already served their time. </p>
<p><em>Update</em>: <em>The legislation passed the House of Representatives late on Wednesday night.</em></p><img src="https://counter.theconversation.com/content/219226/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Peterie receives funding from the Australian Research Council. She also undertakes research in partnership with the Australian Human Rights Commission. </span></em></p><p class="fine-print"><em><span>Amy Nethery does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The release of more than 140 ex-detainees from immigration detention has prompted a panicked government response. So, what does the legislation say, and what happens now?Michelle Peterie, Research Fellow, University of SydneyAmy Nethery, Senior Lecturer in Politics and Policy Studies, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2155382023-10-19T23:59:48Z2023-10-19T23:59:48ZDressing up for Halloween? You could be in breach of copyright law, but it’s unlikely you’ll be sued<figure><img src="https://images.theconversation.com/files/554433/original/file-20231018-19-u84nxj.jpg?ixlib=rb-1.1.0&rect=4%2C1%2C994%2C577&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/happy-halloween-group-children-suits-pumpkins-1175523997">Shutterstock</a></span></figcaption></figure><p>Love it or loathe it, it’s almost Halloween.</p>
<p>While it’s traditionally seen as an American holiday, <a href="https://www.roymorgan.com/findings/ara-roy-morgan-media-release-halloween-2023">more Australians are preparing to celebrate it</a> this year.</p>
<p>Many jump at the chance to dress up as their favourite fictional character, but have you ever stopped to wonder whether you could be breaking copyright law?</p>
<p>Here’s what we know about costumes, cosplay and copyright.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/books-3-has-revealed-thousands-of-pirated-australian-books-in-the-age-of-ai-is-copyright-law-still-fit-for-purpose-214637">Books 3 has revealed thousands of pirated Australian books. In the age of AI, is copyright law still fit for purpose?</a>
</strong>
</em>
</p>
<hr>
<h2>What is copyright?</h2>
<p><a href="https://www.infrastructure.gov.au/sites/default/files/short_guide_to_copyright.pdf">Copyright is a legal right</a> that grants the creator of an original creative work exclusive rights over the way their work is used or distributed. </p>
<p>The idea of the author holding exclusive rights is to encourage the creation of new works. </p>
<p>Importantly, copyright does not exist in the <em>idea</em> of a character, but in <a href="https://www.theipmatters.com/post/the-concept-of-idea-expression-dichotomy-under-copyright-law#:%7E:text=Idea%2DExpression%20Dichotomy%20means%20that,expressions%20of%20these%20ideas%20are.">its <em>expression</em> in tangible form</a>. </p>
<p>For example, copyright cannot exist in the general idea of a young wizard who attends a magical school and embarks on adventures. </p>
<p>However, copyright can exist in the expression of the specific details, characters and descriptions J.K. Rowling used to bring Harry Potter to life in her books. </p>
<p>Whether copyright exists depends on two things: the expression of the character, and the type of work that has been created.</p>
<p>Under the <a href="https://www.legislation.gov.au/Details/C2022C00192">Copyright Act 1968</a>, copyright applies to various categories of original authored works, provided they meet specific criteria. These works include:</p>
<ul>
<li><p>a literary, artistic, or dramatic work</p></li>
<li><p>a sound recording</p></li>
<li><p>a film.</p></li>
</ul>
<p>Taking Harry Potter films as an example, Warner Bros. could assert copyright in several aspects of their films as separate works. </p>
<p>These could be the original written screenplay as a literary work, the musical score as a musical work, the recorded music as sound recordings and the films as cinematographic works.</p>
<p>The initial design sketches and photographs of costumes in the Harry Potter films could qualify as artistic works. </p>
<p>In 2011, a <a href="https://www.bailii.org/uk/cases/UKSC/2011/39.html">UK court case</a> considered whether a Star Wars stormtrooper helmet was a sculpture (artistic work) for the purposes of copyright protection. </p>
<p>The case involved one of the craftsmen who helped design the stormtrooper costume. He used his original tools to make stormtrooper helmets and sold them to the general public. Lucasfilm alleged infringement on the basis the helmets were copyrightable sculptures. </p>
<p>However, the UK court rejected this argument. It found that while the helmets had practical functionality, they didn’t have an artistic purpose and therefore were not covered by copyright.</p>
<p>While this issue has not been tested under Australian law, the ruling might be similar.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of small children in Halloween costumes run towards the camera smiling" src="https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/554438/original/file-20231018-17-dgam7i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Whether a cosplay costume infringes copyright will require examination in the courts, something that hasn’t happened in Australia yet.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/little-kids-halloween-party-1173596917">Shutterstock</a></span>
</figcaption>
</figure>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-was-halloween-invented-once-a-celtic-pagan-tradition-the-holiday-has-evolved-to-let-kids-and-adults-try-on-new-identities-192379">How was Halloween invented? Once a Celtic pagan tradition, the holiday has evolved to let kids and adults try on new identities</a>
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</p>
<hr>
<h2>How can copyright be infringed?</h2>
<p>Infringement is found when a person uses either the entire or a “substantial part” of an original copyrighted work.</p>
<p>The Australian courts have found the idea of a “substantial part” to be a significant, important or distinctive part of the copyrighted material. </p>
<p>That part doesn’t have to be big. <a href="https://austlii.community/foswiki/NTLawHbk/Infringementsubstantialpartrequirement">Even a tiny part</a> can infringe copyright if it’s distinctive enough.</p>
<h2>How does this all apply to costumes?</h2>
<p>Along with Halloween dress-ups, <a href="https://theconversation.com/explainer-what-is-cosplay-20759">cosplay</a> – the hobby of replicating and embodying a wide range of characters through detailed costumes – is another increasingly popular activity.</p>
<p>For cosplayers if the expression of the character is distinctly reproduced, then this might be deemed a “substantial part” of an original work and could therefore be a breach of copyright.</p>
<p>Whether a cosplay costume infringes copyright will require examination in the courts, something that hasn’t happened in Australia yet. </p>
<p>However, the greater the differences between the costume and the original work, the less likely a finding of infringement. </p>
<p>This means relatively small differences in costume elements and features could make a big difference to the outcome.</p>
<h2>Costumes as promotional material</h2>
<p>But even if a costume is technically infringing copyright, are you really going to get sued? Is J.K. Rowling really going to sue a fan for making a Harry Potter costume at Halloween? </p>
<p>This is highly unlikely, particularly when there is no commercial activity involved.</p>
<p>Many authors and artists are proud of the fact their characters are so celebrated through costumes, cosplay and fandom. Homage to creative works plays a vital part of modern pop culture. </p>
<p>For example, as seen with the Game of Thrones, <a href="https://theconversation.com/after-8-years-of-memes-videos-and-role-playing-what-now-for-game-of-thrones-multimedia-fans-117254">fandom</a> can have a significant influence on the success and longevity of the work. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/dolls-and-dollars-why-small-businesses-should-be-wary-of-cashing-in-on-barbiemania-with-their-branding-210875">Dolls and dollars: why small businesses should be wary of cashing in on Barbiemania with their branding</a>
</strong>
</em>
</p>
<hr>
<p>And ultimately, this can help to promote sales of the original work.</p>
<p>If, however, a person engages in commercial activity, they are more likely to be sued for infringement. </p>
<p>In <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2016/944.html">2016, an Australian Federal Court</a> case addressed copyright infringement of J.R.R. Tolkien’s “one ring” inscription from Lord of the Rings. Over eight years, the respondent’s jewellery websites sold about 1,300 rings with this inscription. </p>
<p>The court ruled the inscription was an artistic work and was therefore protected by copyright. Through the respondent’s commercial activity, they had reproduced and sold a substantial part of the inscription, without licence or consent and were found liable.</p>
<p>So if you create your favourite character’s costume this Halloween, even if you are technically infringing copyright, the chances of you being sued are low. </p>
<p>If, however, you engage in commercial activities, your chances of being sued are much higher.</p><img src="https://counter.theconversation.com/content/215538/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wellett Potter does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Traditionally seen as an American holiday, more Australians are preparing to celebrate Halloween. Here’s what we know about costumes, cosplay and copyright, just in time for the spooky season.Wellett Potter, Lecturer in Law, University of New EnglandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2132412023-09-12T02:15:14Z2023-09-12T02:15:14ZYes, Labor’s misinformation bill could jeopardise free speech online<figure><img src="https://images.theconversation.com/files/547721/original/file-20230912-17-axeb80.jpg?ixlib=rb-1.1.0&rect=12%2C74%2C8231%2C5413&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>In January this year, the federal government proposed legislation that seeks to curb the online spread of false and misleading information. </p>
<p>Since then, a range of experts and groups have accused the draft Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill of being vaguely worded and encouraging censorship.</p>
<p>Is this bill really an affront to free speech and, therefore, to democracy itself? And if so, how might it be strengthened to protect online expression? </p>
<h2>An overview of the bill</h2>
<p>The bill aims to amend the Broadcasting Services Act 1992 to <a href="https://www.infrastructure.gov.au/sites/default/files/documents/communications-legislation-amendment-combatting-misinformation-and-disinformation-bill-2023-guidance-note-june2023_2.pdf">grant</a> the Australian Communications and Media Authority (ACMA) “powers to combat online misinformation and disinformation”. </p>
<p>Specifically, ACMA would be given the power to make platforms report back on the measures they are taking to combat what is sometimes called “<a href="https://www.emerald.com/insight/publication/doi/10.1108/9781801178761">fake news</a>”. Should ACMA <a href="https://www.infrastructure.gov.au/sites/default/files/documents/communications-legislation-amendment-combatting-misinformation-and-disinformation-bill-2023-guidance-note-june2023_2.pdf">determine</a> that “stronger protections for Australians are required”, it can then alter the existing media codes of practice and introduce new codes.</p>
<p>ACMA will also <a href="https://www.infrastructure.gov.au/sites/default/files/documents/communications-legislation-amendment-combatting-misinformation-and-disinformation-bill-2023-guidance-note-june2023_2.pdf">have the power</a> “to make an enforceable standard for all digital services providers in the relevant section[s] of the industry”. </p>
<p>The federal government has emphasised ACMA will not remove content from platforms. </p>
<p>The government has also stated the bill “seek[s] to strike a balance between the public interest in combating the serious harms that arise from the propagation of misinformation and disinformation, with freedom of speech”.</p>
<p>But some critics – including constitutional law expert <a href="https://www.theaustralian.com.au/nation/constitutional-lawyer-anne-twomey-warns-of-bills-free-speech-risk/news-story/9ff68cffc5aca09a93b30a45eb983242">Anne Twomey</a> and the <a href="https://humanrights.gov.au/about/news/opinions/why-misinformation-bill-risks-freedoms-it-aims-protect">Australian Human Rights Commission</a> (AHRC) – have argued the bill doesn’t successfully strike this balance, and may have a chilling impact on online expression. </p>
<h2>Combating fake news, or silencing expression?</h2>
<p>The bill’s problems stem largely from the definitions it uses. Both misinformation and disinformation are <a href="https://lawcouncil.au/publicassets/5b25938f-d346-ee11-948a-005056be13b5/4410%20-%20S%20-%20Combatting%20Misinformation%20and%20Disinformation.pdf">defined</a> as “information that is false, misleading or deceptive” and that “is reasonably likely to cause or contribute to serious harm”.</p>
<p>But there is a key difference between these two terms: disinformation is information that is distributed with the express purpose of deceiving others, whereas misinformation isn’t necessarily spread with deceptive intent. </p>
<p>The Law Council of Australia <a href="https://lawcouncil.au/publicassets/5b25938f-d346-ee11-948a-005056be13b5/4410%20-%20S%20-%20Combatting%20Misinformation%20and%20Disinformation.pdf">warns</a> the broadness and imprecision of key terminology in the bill may result in confusion in its application. Similarly, the AHRC <a href="https://humanrights.gov.au/about/news/opinions/why-misinformation-bill-risks-freedoms-it-aims-protect">has said</a>:</p>
<blockquote>
<p>The broad definitions used here risk enabling unpopular or controversial opinions or beliefs to be subjectively labelled as misinformation or disinformation, and censored as a result.</p>
</blockquote>
<p>Put simply, the bill could threaten freedom of speech: the ability to speak one’s mind in a public forum without the unreasonable threat of being silenced (such as via lawsuits or incarceration).</p>
<p>Freedom of speech has been <a href="https://www.tandfonline.com/doi/full/10.1080/10361146.2020.1799938?casa_token=lLy8Dh0BdWcAAAAA%3Ar8fJK3TfvgKrFQw2Uhtp3jNbjNJ-ix2Ir7tvaI8Ss88sOA576ULPWB0EBSHdhGxzST_ZoMa56-xYCw">heralded</a> as a bulwark of any robust democracy; for a democracy to function, citizens must have the right to have their say on the issues of the day.</p>
<p>In the United States, free speech is protected by the First Amendment. No such formal protection exists in Australia. Nevertheless, the AHRC <a href="https://humanrights.gov.au/our-work/rights-and-freedoms/freedom-information-opinion-and-expression">notes</a>:</p>
<blockquote>
<p>the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative and responsible government created by the Constitution.</p>
</blockquote>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/no-twitter-is-not-censoring-donald-trump-free-speech-is-not-guaranteed-if-it-harms-others-153092">No, Twitter is not censoring Donald Trump. Free speech is not guaranteed if it harms others</a>
</strong>
</em>
</p>
<hr>
<h2>Risk of ‘double standards’</h2>
<p>The risk to free speech is further heightened by the bill’s interpretation of what constitutes harm. Historically, the potential of speech to cause <a href="https://journals.sagepub.com/doi/full/10.1177/1329878X21992890?casa_token=eR4jwoaHAt8AAAAA%3A_SU7VNDFPXucu3gCHuBzhfpFO63wVn8WE_QOnkW5LGQRqgtk0RghkokhrYn74HyhYL5T81TSjzot-w">harm</a> (either physical or psychological) has been understood as one of the few reasons that speech should ever be censored. </p>
<p>The bill <a href="https://www.infrastructure.gov.au/sites/default/files/documents/communications-legislation-amendment-combatting-misinformation-and-disinformation-bill-2023-guidance-note-june2023_2.pdf">identifies</a> one harm as being the “disruption of public order or society in Australia” – but does not clarify what such a disruption would actually entail. </p>
<p>The Media, Entertainment and Arts Alliance argues this concept of “harm” is especially vulnerable to misuse. It <a href="https://www.meaa.org/download/meaa-submission-on-misinformation-and-disinformation/">notes</a> “there is a long history of important social movements being considered ‘disruptive’ by governments and powerful interests”.</p>
<p>It’s easy to imagine online campaigns opposing Australian refugee policy, taxation laws or institutionalised racism being labelled as “misinformation” – even if they have a factual basis.</p>
<p>The bill does feature a list of exemptions, including authorised government content. This could include press releases and social media posts. </p>
<p>The Victorian Bar <a href="https://www.vicbar.com.au/sites/default/files/2023.07.28%20VB%20Submission%20-%20Communications%20Legislation%20Amendment%20Bill.pdf">posits</a> this exemption creates a “double standard” that “disadvantages critics of government in comparison with a government’s supporters”.</p>
<p>There is also the patently false implication that government information can’t be incorrect.</p>
<h2>What happens now?</h2>
<p>Despite its faults, the bill is well intentioned. As Minister for Communications Michelle Rowland <a href="https://lsj.com.au/articles/new-legislation-to-combat-online-misinformation/">rightly</a> says: </p>
<blockquote>
<p>Mis- and disinformation sows divisions within the community, undermines trust and can threaten public health and safety.</p>
</blockquote>
<p>The bill is yet to be debated in parliament, which means there’s still time for amendments to be made. In particular, the imprecision of key terminology is ripe for amendment. </p>
<p>Should the bill pass into law as it is, it could lead to censorship – endangering the very democracy it purports to defend.</p><img src="https://counter.theconversation.com/content/213241/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jay Daniel Thompson receives funding from the Australian Research Council for a collaborative study entitled 'Addressing online hostility in Australian Digital Cultures' (DP230100870). Dr. Thompson is also the recipient of a 2023 Herbert & Valmae Freilich Project ECR Small Grant for a project entitled ‘Digital citizenship and ethical journalistic representations of online hostility directed at women and girls’.</span></em></p>The bill, yet to be debated in parliament, is ripe for amendment.Jay Daniel Thompson, Lecturer and Program Manager, Professional Communication program, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2056572023-05-16T03:32:19Z2023-05-16T03:32:19ZGuess What? Mem Fox’s children’s book was banned in Florida over ‘nudity’ – but bathing is not a sexual act<p><em>EDITOR’S NOTE: Since this article was published, officials in Duval County, Florida, have <a href="https://amp.abc.net.au/article/102355360">denied</a> the book was formally banned. The book does not appear among the 21 books listed as “not approved” on the <a href="https://dcps.duvalschools.org/Page/33197">Duval County Public Schools website</a>. However, it does feature on a list of books reported as having been removed from school libraries, on the grounds that it contravened a <a href="https://www.flsenate.gov/Laws/Statutes/2022/847.012">state law</a> banning the distribution to children of material that “depicts nudity or sexual conduct”. The list, of which The Conversation has obtained a copy, was the result of a Florida Department of Education survey of school districts, as part of the state’s mandated review of school books. The Conversation acknowledges the work of the <a href="https://www.fftrp.org/">Florida Freedom to Read Project</a> in investigating this issue.</em></p>
<hr>
<p>Australian author Mem Fox’s 1988 picture book <a href="https://www.goodreads.com/book/show/1155071.Guess_What_?">Guess What?</a>, illustrated by Vivienne Goodman, has been banned in Duval County, Florida over allegations of “pornography”. Why? Because one illustration depicts the main character, “old witch” Daisy O'Grady, taking a bath.</p>
<p>The picture book, which invites children to guess Daisy’s witchy identity through a series of clues, joins a plethora of titles – mostly with LGBTQIA+ or culturally diverse themes – that have been removed from school libraries in the state. </p>
<p>Fox is one of Australia’s most beloved authors: her first book, <a href="https://www.goodreads.com/book/show/977817.Possum_Magic">Possum Magic</a>, is one of Australia’s bestselling ever children’s books, with sales of over four million (and counting). Her agent <a href="https://www.theguardian.com/books/2023/may/15/mem-fox-book-guess-what-banned-in-florida-county-under-ron-desantis-bill">told the Guardian</a>, “We have nothing to say on this issue. Duval County is a county of 997,000 people in Florida. It is not important.”</p>
<p>The banning comes on the heels of new legislation, enacted in 2022, that has seen many Florida schools strip their library shelves and cover up books in classroom libraries for fear of <a href="https://www.newyorker.com/news/letter-from-the-south/why-some-florida-schools-are-removing-books-from-their-libraries">breaching the law</a> – and <a href="https://abcnews.go.com/Politics/florida-schools-directed-cover-remove-classroom-books-vetted/story?id=96884323">risking a prison sentence</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/526380/original/file-20230516-23-mz8xy2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/526380/original/file-20230516-23-mz8xy2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/526380/original/file-20230516-23-mz8xy2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/526380/original/file-20230516-23-mz8xy2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/526380/original/file-20230516-23-mz8xy2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/526380/original/file-20230516-23-mz8xy2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/526380/original/file-20230516-23-mz8xy2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/526380/original/file-20230516-23-mz8xy2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ron De Santis has presided over new Florida legislation that seen many Florida schools strip their library shelves.</span>
<span class="attribution"><span class="source">Douglas R. Clifford/Tampa Bay Times/AP</span></span>
</figcaption>
</figure>
<p>Under <a href="http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0800-0899/0847/Sections/0847.012.html">Section 847.012</a> of the Florida statutes, materials prohibited in schools include: </p>
<blockquote>
<p>Any picture […] or visual representation of a person or a portion of a human body which depicts nudity or sexual conduct, sexual excitement, sexual battery, bestiality, or sadomasochistic abuse and which is harmful to minors.</p>
</blockquote>
<p>Failure to comply is a third-degree felony, which can carry a prison sentence of up to five years.</p>
<p>The full criteria can be found in the department’s <a href="https://www.fldoe.org/core/fileparse.php/20562/urlt/8-6.pdf">online training slideshow</a> but, simply put, all books must be age appropriate and “free of pornography”. However, what constitutes both “appropriate” and “pornography” – and how this is decided – remains unclear. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/teacher-sacked-for-reading-bum-book-to-students-the-latest-conservative-book-ban-179301">Teacher sacked for reading bum book to students: the latest conservative book ban</a>
</strong>
</em>
</p>
<hr>
<h2>Bodies are not ‘inherently sexual’</h2>
<p>So how exactly does Guess What? fit these parameters? </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/526372/original/file-20230516-25-bribzy.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/526372/original/file-20230516-25-bribzy.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/526372/original/file-20230516-25-bribzy.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=799&fit=crop&dpr=1 600w, https://images.theconversation.com/files/526372/original/file-20230516-25-bribzy.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=799&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/526372/original/file-20230516-25-bribzy.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=799&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/526372/original/file-20230516-25-bribzy.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1004&fit=crop&dpr=1 754w, https://images.theconversation.com/files/526372/original/file-20230516-25-bribzy.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1004&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/526372/original/file-20230516-25-bribzy.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1004&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Daisy O'Grady in the bath, as depicted in Guess What?.</span>
<span class="attribution"><span class="source">Scholastic Australia</span></span>
</figcaption>
</figure>
<p>In one illustration, Daisy sits across a double bowl sink (that she is comically too big to fit in) wearing a scuba mask. The bowls are filled with water, and she sits sideways in one with her feet splashing in the other. She is nude, but not exposed. Limbs cover her breasts and genitalia. The room is busy and pleasantly chaotic: soap on the floor, a frog on a towel, fish pegged to the clothesline that hangs over the sink. </p>
<p>It’s far from a sexual image. Unless you’re into that sort of thing. In which case, we are no longer talking about the “prevailing standards in the adult community”, but rather a personal sexual preference or “kink” (a word I never thought I would write in relation to a Mem Fox picture book). </p>
<p>What the issue comes down to is a blatant conflation between nudity and sexuality. The statute’s wording is highly problematic: nudity in and of itself is not a sexual act. Bathing is not a sexual act. It’s basic hygiene. By banning books with any form of nudity in a bid to rid school libraries of “<a href="https://www.flgov.com/2023/03/08/governor-ron-desantis-debunks-book-ban-hoax/">pornographic content</a>”, the statute situates all nudity as a form of pornography. </p>
<p>The irony, of course, is that by trying to shelter children from sex – and from material that “sexualises students” – the law itself is sexualising children’s bodies. By implying that nudity in a non-sexual context is “pornographic”, the Florida government and Department of Education is teaching children that their bodies are inherently sexual. </p>
<h2>Australian attempted book bans haven’t worked</h2>
<p>In some ways, this ban could be considered as an example of differing social standards between Australia and the United States. Earlier this year, Maia Kobabe’s graphic memoir <a href="https://www.goodreads.com/is/book/show/42837514-gender-queer">Gender Queer</a> was pulled from a Queensland library after complaints by a <a href="https://www.9news.com.au/national/maia-kobabe-gender-queer-book-classified-as-m-mature-not-recommended-for-readers-under-15-years/0c95bfdd-7bab-4763-bdfc-5e503227da36">conservative activist</a>. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/526384/original/file-20230516-27-qrxl1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/526384/original/file-20230516-27-qrxl1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/526384/original/file-20230516-27-qrxl1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=860&fit=crop&dpr=1 600w, https://images.theconversation.com/files/526384/original/file-20230516-27-qrxl1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=860&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/526384/original/file-20230516-27-qrxl1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=860&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/526384/original/file-20230516-27-qrxl1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1081&fit=crop&dpr=1 754w, https://images.theconversation.com/files/526384/original/file-20230516-27-qrxl1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1081&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/526384/original/file-20230516-27-qrxl1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1081&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>In the US, Gender Queer was 2021’s “<a href="https://www.nytimes.com/2022/05/01/books/maia-kobabe-gender-queer-book-ban.html">most banned book in the country</a>” and topped the American Library Association’s “<a href="https://www.ala.org/advocacy/bbooks/frequentlychallengedbooks/top10">Most Challenged</a>” list in 2022 for “<a href="https://www.cbsnews.com/essentials/banned-books-the-10-most-commonly-challenged-books-in-the-u-s-and-where-to-buy-them/">sexually explicit</a>” content.
However, after <a href="https://www.classification.gov.au/about-us/media-and-news/media-releases/media-release-classification-publication-gender-queer-memoir">review</a> here by the Australian Classification Board, the book was given an “unrestricted classification” and consumer advice that it is “not recommended for readers under 15 years”. </p>
<p>Australian Classification Board director Fiona Jolly said of Gender Queer: </p>
<blockquote>
<p>The treatment of sex and nudity is […] not high in impact and is not exploitative, offensive, gratuitous or very detailed. Given the [book’s] literary, artistic and educational merits, the Board does not consider that the publication contains material that offends a reasonable adult to the extent that it should be restricted.</p>
</blockquote>
<p>While Australian legislation <a href="https://www.abc.net.au/news/2019-08-23/dangerous-and-deeply-disgusting-books-once-banned/11421108">still allows</a> books to be banned – and it does occur – book banning is much rarer here, and more likely to be <a href="https://www.abc.net.au/news/2019-08-23/dangerous-and-deeply-disgusting-books-once-banned/11421108">focused on</a> topics like euthanasia and terrorism.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/even-the-word-period-is-now-politicised-that-makes-judy-blumes-classic-ode-to-puberty-especially-relevant-202640">Even the word 'period' is now politicised. That makes Judy Blume's classic ode to puberty especially relevant</a>
</strong>
</em>
</p>
<hr>
<h2>Book banning as a presidential tactic</h2>
<p>The surge of book banning in Florida appears to be political. As <a href="https://www.newyorker.com/news/letter-from-the-south/why-some-florida-schools-are-removing-books-from-their-libraries">The New Yorker</a> has noted, the Florida law changes – and subsequent mass book removals in schools – have come in the wake of Florida governor <a href="https://theconversation.com/florida-gov-desantis-leads-the-gops-national-charge-against-public-education-that-includes-lessons-on-race-and-sexual-orientation-196369">Ron DeSantis</a>’s <a href="https://www.nbcnews.com/politics/2024-election/ron-desantis-set-jump-2024-presidential-fray-may-rcna81666">bid</a> for the US presidency. </p>
<p>DeSantis, a highly <a href="https://www.flgov.com/2023/03/08/governor-ron-desantis-debunks-book-ban-hoax/">conservative</a> politician, is campaigning against “pornographic and inappropriate materials that have been snuck into [Florida] classrooms and libraries to <a href="https://theconversation.com/worried-about-the-sexualisation-of-children-teach-sex-ed-earlier-10311">sexualize</a> our students”. This crusade has given him considerable media coverage, as well as leverage among conservative voters.</p>
<p>The banning of Guess What? is part of a wider issue that affects the entire state of Florida. In order to comply with government requirements spearheaded by DeSantis, the Florida Department of Education has put together strict, somewhat “<a href="https://www.edweek.org/teaching-learning/theres-confusion-over-book-bans-in-florida-schools-heres-why/2023/03">confusing</a>” criteria for book selection that all schools must follow. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/ss3pVTRwEqI?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">This official video by Duval County, Florida, is a guide to ensuring books are ‘age-appropriate’ and ‘free of pornography’.</span></figcaption>
</figure>
<h2>Prison for violating book removal law</h2>
<p>Of course, Guess What? – and countless other banned books – do not actually fit the requirements for removal, but they are removed regardless. This is because the law is <a href="https://www.edweek.org/teaching-learning/theres-confusion-over-book-bans-in-florida-schools-heres-why/2023/03">vague</a> and the penalty for violating it – a potential prison sentence – is severe. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/526385/original/file-20230516-23-xndwxx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/526385/original/file-20230516-23-xndwxx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/526385/original/file-20230516-23-xndwxx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=796&fit=crop&dpr=1 600w, https://images.theconversation.com/files/526385/original/file-20230516-23-xndwxx.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=796&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/526385/original/file-20230516-23-xndwxx.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=796&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/526385/original/file-20230516-23-xndwxx.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1000&fit=crop&dpr=1 754w, https://images.theconversation.com/files/526385/original/file-20230516-23-xndwxx.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1000&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/526385/original/file-20230516-23-xndwxx.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1000&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<p>The Department of Education in Florid has instructed schools to “<a href="https://www.newyorker.com/news/letter-from-the-south/why-some-florida-schools-are-removing-books-from-their-libraries">err on the side of caution</a>” when choosing and allowing books. </p>
<p>Understandably, the ambiguity over what is and isn’t okay has led to mass book removals across Florida schools. </p>
<p>The restrictions in Florida are part of a “<a href="https://pen.org/report/banned-usa-growing-movement-to-censor-books-in-schools/">deeply undemocratic</a>” book ban movement sweeping the US. </p>
<p>According to a <a href="https://pen.org/report/banned-usa-growing-movement-to-censor-books-in-schools/">2022 study</a> by PEN America, 32 states in the US have book bans in place in school libraries. This has culminated (so far) in 1,648 titles being removed across 5,049 schools, limiting access to books for nearly four million students.</p>
<p>Thankfully, Australia’s reading culture is very different, as the unsuccessful attempt to ban Gender Queer demonstrates.</p>
<p>But Guess What? is just one drop in an ocean of book censorship in America: one that’s seeing more and more schools, districts and states in the US removing and banning books. This is not an isolated problem, but one that is growing exponentially. </p>
<p>Which books will be next?</p><img src="https://counter.theconversation.com/content/205657/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sarah Mokrzycki does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Book bans in Ron DeSantis’s Florida have censored beloved Australian author Mem Fox – for an illustrated character’s bath. But blanket nudity bans teach children bodies are ‘inherently sexual’.Sarah Mokrzycki, Lecturer, Victoria UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1952102022-12-05T19:03:25Z2022-12-05T19:03:25ZClashing laws need to be fixed if we want to live in bushfire-prone areas<p>It’s almost bushfire season. Yes, even though floods are <a href="https://www.skynews.com.au/australia-news/communities-in-south-australia-prepare-for-floods/video/facacbb5d3ab50f17c33846131721293">still racing</a> through parts of eastern Australia. Fire conditions are <a href="https://www.afac.com.au/auxiliary/publications/newsletter/article/seasonal-bushfire-outlook-summer-2022-australia-s-national-picture-of-fire-potential">above average</a> including in inland New South Wales and Queensland.</p>
<p>When we switch back to a neutral or El Niño climate cycle, our fire risk will <a href="https://theconversation.com/fire-management-in-australia-has-reached-a-crossroads-and-business-as-usual-wont-cut-it-174696">likely intensify</a>, given the huge vegetation growth during these rainy years. </p>
<p>As we prepare for the next major fire season, it’s vital we take a close look at our laws. Why? Because these laws can clash in ways that make it harder for us to prepare.</p>
<p>Governments have always struggled to balance laws protecting nature with laws protecting us from bushfire. </p>
<p>In recent years, planning laws have been changed to make it easier to fell trees and clear vegetation to keep our homes safe. Some of these came out of the review of Victoria’s catastrophic 2009 Black Saturday fires, where many houses nestled in bush burned. But these changes to the rules about clearing native vegetation can also make it harder for us to preserve habitat – and can give us a false sense of security, encouraging us to settle deeper and deeper into the fire-prone bush. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/498876/original/file-20221205-16594-tpumya.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="house in blue mountains" src="https://images.theconversation.com/files/498876/original/file-20221205-16594-tpumya.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/498876/original/file-20221205-16594-tpumya.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498876/original/file-20221205-16594-tpumya.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498876/original/file-20221205-16594-tpumya.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498876/original/file-20221205-16594-tpumya.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498876/original/file-20221205-16594-tpumya.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498876/original/file-20221205-16594-tpumya.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Many people love living in the bush - but it comes with risks. Our bushfire laws are aimed at reducing risk to us - sometimes at the expense of nature.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<h2>Why do laws matter for bushfire preparation?</h2>
<p>My colleagues and I <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0012/4287738/05-McCormack-et-al-156.pdf">recently mapped</a> out Australia’s legal “anatomy” for fire. By anatomy, we mean all the different parts of the legal framework, including those that affect fire preparation. </p>
<p>Why? To optimise our system of laws to be ready for the ever-more-intense fires expected as the world heats up. </p>
<p>Here’s what a clash looks like. It’s now common to undertake prescribed burns and burn vegetation to reduce fuel loads and reduce the chances of a major bushfire. </p>
<p>But prescribed fires cause smoke. Fire agencies must comply with smoke pollution laws designed to keep <a href="https://theconversation.com/how-does-bushfire-smoke-affect-our-health-6-things-you-need-to-know-130126">vulnerable people safe</a>. These two different risks – bushfire, and smoke-related illness – are managed under two different areas of law. Finding the balance <a href="https://theconversation.com/frequent-extreme-bushfires-are-our-new-reality-we-need-to-learn-how-to-live-with-smoke-filled-air-149427">is really hard</a>. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/new-research-in-arnhem-land-reveals-why-institutional-fire-management-is-inferior-to-cultural-burning-184562">New research in Arnhem Land reveals why institutional fire management is inferior to cultural burning</a>
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<p>We already know our environmental laws are failing to <a href="https://theconversation.com/to-fix-australias-environment-laws-wildlife-experts-call-for-these-4-changes-all-are-crucial-154273">adequately protect nature</a>. </p>
<p>Bushfires add to this as a serious and growing threat to our distinctive wildlife and ecosystems. The Black Summer megafires of 2019–20 killed huge numbers of animals and pushed many species <a href="https://theconversation.com/research-reveals-fire-is-pushing-88-of-australias-threatened-land-mammals-closer-to-extinction-185965">closer to extinction</a>, including mountain pygmy possums, native bees and rare frogs. </p>
<p>As fire seasons worsen and get longer over coming decades, fire agencies and local governments will be called on to clear and manage fuel loads – essentially, trees, plants and leaf litter – close to communities in the bush. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/498878/original/file-20221205-21-rvfgn7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="leaf litter" src="https://images.theconversation.com/files/498878/original/file-20221205-21-rvfgn7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/498878/original/file-20221205-21-rvfgn7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498878/original/file-20221205-21-rvfgn7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498878/original/file-20221205-21-rvfgn7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498878/original/file-20221205-21-rvfgn7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498878/original/file-20221205-21-rvfgn7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498878/original/file-20221205-21-rvfgn7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Leaf litter and fallen trees are fire hazards - and habitat.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>You can see the issue. Bushfire fuel is also habitat. Our international and domestic obligations to protect threatened species and habitats will come into <a href="https://www.edo.org.au/2022/03/25/two-years-on-from-the-black-summer-bushfires-continuing-our-work-to-protect-native-forests-and-wildlife">increasing conflict</a> with the need to preserve our settlements and farms.</p>
<p>Better, clearer laws would help balance these issues. Last year, the Victorian government announced plans to make bushfire planning provisions <a href="https://engage.vic.gov.au/bushfire-planning-made-clearer-options-victorias-planning-system">clearer and more understandable</a>. Reviews like this should clarify where homes can and can’t be safely built, as well as preventing development in sensitive habitat. </p>
<h2>Laws around fire need to be considered separately</h2>
<p>Emergency planners often group floods, storms and bushfires under the blanket term “all hazards”. This is done to help emergency services to plan efficient and coordinated responses to all kinds of extreme events. </p>
<p>We believe laws about fire also deserve specific attention, particularly in Australia, where many of our ecosystems have evolved alongside fire. Not all fire is equal and not all fires are emergencies. </p>
<p>In fact, laws governing protected areas in some states actually require parks agencies to use fire as a conservation tool. Using fire carefully is front and centre in the <a href="https://parks.tas.gov.au/Documents/TWWHA%20Fire%20Management%20Plan.pdf">new plan</a> to look after Tasmania’s Wilderness World Heritage Area. </p>
<p>Not only that, but some areas need small fires lit in a mosaic pattern. Why? To encourage moorland plants to put out the flowers and seeds the critically endangered orange-bellied parrot relies on. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-1970s-conservation-laws-turned-this-paradise-on-earth-into-a-tinderbox-192401">How 1970s conservation laws turned this ‘paradise on Earth’ into a tinderbox</a>
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<hr>
<p>Or take the <a href="https://landcareaustralia.org.au/project/traditional-aboriginal-burning-modern-day-land-management/">growing importance</a> of cultural fire management and traditional land management. Victoria’s <a href="https://www.aidr.org.au/media/6817/fireplusstrategyplusfinal.pdf">cultural fire strategy</a> describes cultural burning as a “responsibility” and an example of “living knowledge”, but not as an emergency. </p>
<p>Some laws, like arson, only apply to fire. There’s no equivalent crime for floods. Improving arson prevention could <a href="https://www.afac.com.au/docs/default-source/fire-and-hazard-notes/063.pdf?sfvrsn=10&download=false">help cut</a> the estimated A$1.6 billion in damages annually from fires being lit deliberately. </p>
<p>While arson is <a href="https://www.abc.net.au/news/2020-01-15/is-arson-mostly-to-blame-for-the-bushfire-crisis/11865724">not as common</a> as it used to be, cutting arson further will reduce the number of fires Australian firefighters have to respond to. </p>
<h2>We have to make laws intersect better</h2>
<p>In the wake of destructive and lethal fires come the reviews and inquiries, which often recommend changes to emergency management laws. </p>
<p>These post-disaster inquiries also often recommend <a href="https://www.rfs.nsw.gov.au/plan-and-prepare/1050-vegetation-clearing#:%7E:text=The%20scheme%20allows%20people%20in,a%20home%2C%20without%20seeking%20approval">streamlining rules</a> around native vegetation, to let landholders clear more trees and shrubs around their houses. That’s understandable, because these inquiries are intended to find lessons. </p>
<p>But if we look across the whole range of laws governing or touching on fire, we might find new ways to help us adapt. </p>
<p>Over the last century, Australian governments have launched <a href="https://theconversation.com/we-have-already-had-countless-bushfire-inquiries-what-good-will-it-do-to-have-another-129896">hundreds of inquiries and commissions</a> after major bushfires. </p>
<p>We don’t need to wait for the next fire and inquiry. We can find ways of optimising our web of intersecting laws right now – and prepare ourselves and nature for what is to come.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/we-have-already-had-countless-bushfire-inquiries-what-good-will-it-do-to-have-another-129896">We have already had countless bushfire inquiries. What good will it do to have another?</a>
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<p><em>My co-authors Professors Jan McDonald and David Bowman, Associate Professor Michael Eburn, Dr Stuart Little and Dr Rebecca Harris contributed to the research on which this article is based.</em></p><img src="https://counter.theconversation.com/content/195210/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Phillipa McCormack is affiliated with Natural Hazards Research Australia, and was the NHRA 2022 Early Career Research Fellow. </span></em></p>We need a way for our laws to protect both humans and nature when it comes to bushfire riskPhillipa C. McCormack, Postdoctoral Research Fellow, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1905232022-10-21T12:38:19Z2022-10-21T12:38:19ZIntuitions about justice are a consistent part of human nature across cultures and millennia<figure><img src="https://images.theconversation.com/files/490972/original/file-20221020-19-jm6ebd.jpg?ixlib=rb-1.1.0&rect=1531%2C144%2C4475%2C3287&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Laws from different places and eras largely reflect a universal human sense of justice.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/lady-justice-statue-of-justice-in-library-royalty-free-image/1313531795">simpson33/iStock via Getty Images Plus</a></span></figcaption></figure><p>“Thou shalt not kill” may be the most recognizable moral prohibition in societies around the world. </p>
<p>But where does your sense of justice come from?</p>
<p>Throughout history, justice and laws about wrongdoing have been <a href="https://www.sefaria.org/texts/Tanakh">attributed to one god or another</a>. More recently, <a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674518360">justice has been traced to moral truths</a> that can be discovered by judges and other legal experts, and to <a href="https://www.jstor.org/stable/41203513">social norms that vary across cultures</a>. </p>
<p>However, <a href="https://scholar.google.com/citations?user=AKHl_vwAAAAJ&hl=en&oi=ao">our</a> <a href="https://scholar.google.com/citations?hl=en&user=CzKmINsAAAAJ&view_op=list_works&sortby=pubdate">research</a> instead suggests that the human sense of justice, and criminal laws, <a href="https://doi.org/10.1038/s41562-020-0827-8">is generated by the human brain</a>.</p>
<p>Put simply: Being human makes you a decent lawmaker even if you’ve never stepped foot in law school. To an important extent, criminal laws appear to be the end products of gut feelings about justice that are a part of human nature.</p>
<p>Here’s how we investigated just how universal these intuitions are:</p>
<h2>Testing the human brain’s sense of justice</h2>
<p>Human conflict ranges from the mild, as when neighbors disagree about the appropriate loudness of music, to the serious, including cases of fraud, robbery, rape, homicide – the stuff of criminal law.</p>
<p>Laws and litigation come in handy when you’re butting heads with someone. But your <a href="https://mitpress.mit.edu/9780262072755/heuristics-and-the-law/">brain automatically generates intuitions about justice</a> when there is even the potential for conflict, long before you set foot in court. People, <a href="https://doi.org/10.2307/1128983">even young children</a>, have strong feelings about what counts as a wrongful action and <a href="https://doi.org/10.1073/pnas.1110306108">how much punishment a wrongdoer deserves</a>.</p>
<p>These justice intuitions come naturally to everyone. They’re like human lungs or human retinas – part of being human. </p>
<p>So maybe the standard-issue human brain forms the basis of formal and informal justice. If so, a distinctive prediction follows: Laypeople will make decent lawmakers using their sense of justice even when they have no training in law. Further, laypeople will be able to intuitively recreate core features of actual criminal laws from cultures they are totally unfamiliar with.</p>
<p>We devised a study to test those predictions. We showed participants various offenses drawn from actual criminal codes but not the punishments that the law establishes for those offenses.</p>
<p><iframe id="zIAwq" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/zIAwq/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>Some of the offenses we presented came from a modern and culturally familiar society, drawn from Title 18 of the <a href="https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/18.HTM">Consolidated Pennsylvania Statutes</a>. But other offenses were truly ancient and culturally foreign. Some participants evaluated offenses <a href="https://cart.sbl-site.org/books/061506P">from the Laws of Eshnunna</a>, a 3,800-year-old Mesopotamian legal code – one of humanity’s most ancient legal codes. Other participants saw offenses from the <a href="https://press.princeton.edu/books/hardcover/9780691636320/the-tang-code-volume-ii">Tang Code, a 1,400-year-old legal code from China</a>.</p>
<p>These archaic laws are the next best thing to time travel. They are like fossils that preserve the legal thinking of ancient lawmakers.</p>
<p>To give some examples, some of the Eshnunna offenses shown to participants included: biting out the eye of another man, seizing a boat fraudulently and failing to keep one’s aggressive ox in check, resulting in a slave being killed by the ox. Such were the offenses of an ancient Mesopotamian society.</p>
<p>Despite the massive cultural differences between the ancient city-state of Eshnunna and modern societies, if the sense of justice, and laws, originates in the human brain, then the king who decreed the Laws of Eshnunna and the participants in the study may be of one mind.</p>
<p>So next we asked participants to rate each of the offenses they saw. Some participants were asked to imagine they were lawmakers; they were asked to mock-legislate the fines each offense would deserve by law. Other participants mock-legislated prison sentences for each offense. To make sure participants were giving their untrained intuitions, we excluded from analyses participants who attended law school. </p>
<p>Indeed, the Eshnunna king and the participants in our study did display a shared sense of justice. The more study participants judged an ancient offense as serious, the higher the actual punishment provided by law for that offense.</p>
<p>This match between participants’ intuitions and ancient laws wasn’t perfect, but it was substantial. It suggests that human beings share a sense of justice and that people today can recreate the core of criminal laws from faraway societies that are thousands of years in the past.</p>
<h2>Cultural effects on the sense of justice</h2>
<p>A shared sense of justice that is part of human nature does not deny cultural differences. </p>
<p>Consider this Tang offense: “All cases of a master who kills a slave who has not committed an offense are punished by one year of penal servitude (NB: redeemable by paying a fine of 20 copper chin).” The Tang Code considers this offense to be relatively mild – consider, for example, that “beating and killing a person in an affray” was punished by the Tang Code with strangulation or a fine of 120 copper chin. In contrast, study participants judged “killing a slave who has not committed an offense” a very serious transgression.</p>
<p>And yet, participants’ intuitive responses generally matched the responses called for in the ancient criminal codes. For instance, participants agreed with the Tang lawmakers that beating and killing a person in a fight is a worse offense than betting goods and articles in games of chance.</p>
<p>To us, this mix of cross-cultural differences and similarities suggests that the brain machinery that generates the sense of justice combines universal principles with open parameters that are filled in with local information. The universal principles may explain why participants generally saw eye to eye with the Eshnunna king and the Tang lawmakers. The open parameters may explain cultural variation.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/490973/original/file-20221020-15-6tujk0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="two bighorn sheep butt heads" src="https://images.theconversation.com/files/490973/original/file-20221020-15-6tujk0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/490973/original/file-20221020-15-6tujk0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/490973/original/file-20221020-15-6tujk0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/490973/original/file-20221020-15-6tujk0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/490973/original/file-20221020-15-6tujk0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/490973/original/file-20221020-15-6tujk0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/490973/original/file-20221020-15-6tujk0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People, animals, even very simple organisms can be in conflict.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/bighorn-sheep-rams-in-rut-butting-heads-royalty-free-image/1057145660">Stan Tekiela Author/Naturalist/Wildlife Photographer/Moment via Getty Images</a></span>
</figcaption>
</figure>
<h2>Evolutionary roots of a sense of justice</h2>
<p>Conflict is evolutionarily ancient. Organisms, including nonhuman animals, can offend against others – for example, by preying on them. And so natural selection would have endowed organisms with means that help them solve conflicts in their favor: fangs, antlers, neurotoxic venoms. These defenses and weapons are useful. Our ancestors lived in a world without police, and so they had to be their own police if they were to survive and thrive.</p>
<p>But human conflict is special. With their ingenuity and knack for cooperation, people can produce a huge array of goods and services that other people can swindle, rob, adulterate, counterfeit, embezzle and destroy. So the scope of human conflict is vast. </p>
<p>Brawn may help in human conflict, but brain is key. Humans live in an information-dense world, where it’s important to know precisely how much harm is being done to you when someone offends against you. Accurately appraising wrongs allows victims to demand or deliver an amount of punishment that is, as in the story of Goldilocks, just right: neither too small that an undeterred offender will re-offend, nor too great that the offender will counter-punish the original victim. Our human ancestors didn’t have price tags or written laws to appraise wrongful actions, so they needed to appraise wrongful actions with their brains.</p>
<p>The brain mechanisms for appraising wrongdoing appear to be part of human nature – the same in all times and places humans have lived in. Of course, justice intuitions and criminal laws vary across cultures. Grand theft auto wasn’t appraised in Sparta because there were no cars 2,500 years ago. Written criminal laws are absent in societies without writing systems.</p>
<p>Nevertheless, the <a href="https://doi.org/10.1016/S0047-2352(02)00198-8">human sense of justice</a> <a href="https://doi.org/10.1073/pnas.1911517117">seems to be fundamentally similar across space and time</a>. And criminal laws everywhere may be shaped by a sense of justice and offense-appraising mechanisms that are universal – akin to how <a href="https://doi.org/10.3945/ajcn.2009.27462B">universal mechanisms of taste perception</a> give rise to the world’s diverse cuisines.</p><img src="https://counter.theconversation.com/content/190523/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Sznycer received funding from Fonds de recherche du Québec and Quebec Bio-Imaging Network </span></em></p><p class="fine-print"><em><span>Carlton Patrick does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>What people consider to be fair and just today are in line with the laws of ancient Mesopotamia and the Tang Dynasty in China – suggesting that these intuitions are part of human nature.Daniel Sznycer, Assistant Professor of Psychology, Oklahoma State UniversityCarlton Patrick, Assistant Professor of Legal Studies, University of Central FloridaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1910832022-09-23T02:38:28Z2022-09-23T02:38:28Z‘No body, no parole’ laws could be disastrous for the wrongfully convicted<p>The New South Wales government is set to <a href="https://www.nsw.gov.au/media-releases/nsw-to-introduce-no-body-no-parole-laws">introduce</a> new “no body, no parole” laws, which will deny parole for homicide offenders who refuse to provide information or assistance to locate their victim’s remains.</p>
<p>This follows Chris Dawson’s murder conviction of Lynette Dawson, whose remains have yet to be found. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1571977464272031744"}"></div></p>
<p>Such laws offer prisoners an incentive to give up information about the location of their victims’ remains. Similar laws have already been introduced in Northern Territory, Queensland, South Australia, Victoria and Western Australia.</p>
<p>In general, “no body, no parole” laws mandate that parole authorities should deny parole unless they are satisfied about the level of cooperation provided by the prisoner to identify remains, including how early the information was provided.</p>
<p>These laws are designed to provide closure to friends and families of homicide victims, allowing them to bury their loved ones. However, there’s scant evidence they are effective. And they could prove disastrous for people in Australian prisons who have been wrongfully convicted.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/true-crime-entertainment-like-the-teachers-pet-can-shine-a-light-on-cold-cases-but-does-it-help-or-hinder-justice-being-served-189787">True crime entertainment like The Teacher's Pet can shine a light on cold cases - but does it help or hinder justice being served?</a>
</strong>
</em>
</p>
<hr>
<h2>What is parole and why is it important?</h2>
<p>Parole is the conditional early release of prisoners, allowing them to serve a part of their sentence in the community. </p>
<p>When given a prison sentence, a judge will determine how long an offender must remain in custody (a non-parole period) and at what point they can become eligible to serve the rest of their sentence in the community.</p>
<p>Parole recognises that aims of rehabilitation may be best served by providing opportunities for prisoners to transition back into the community. The courts decide whether a person is eligible for parole, but state parole authorities decide whether or not to release them when the time comes. </p>
<p>Evidence suggests offenders who complete some period of parole before the end of their sentence are <a href="https://www.aic.gov.au/sites/default/files/2020-05/tandi485.pdf">less likely to re-offend</a>.</p>
<p>While completing their sentence in the community, parolees also must comply with parole conditions. This can include reporting conditions and mandatory behavioural programs that <a href="https://www.bocsar.nsw.gov.au/Pages/bocsar_publication/Pub_Summary/CJB/CJB245-Summary-The-effect-of-parole-supervision-on-recidivism.aspx">reduce the risk of re-offending</a>.</p>
<p>Tightening parole exacerbates the issue of <a href="https://www.pc.gov.au/research/completed/prison-dilemm">overcrowded prisons</a>
with offenders capable of being managed in the community being housed at the public expense in correctional facilities. </p>
<p>There is considerable concern in Australia over prisoners “maxing out” their custodial sentence, either by choosing <a href="https://www.abc.net.au/news/2016-09-09/victoria-parole-laws-backfiring-more-prisoners-max-out-sentence/7826940">not to apply for parole</a> to avoid conditions upon release, or because of restrictions on parole eligibility such as “no body, no parole” laws.</p>
<h2>The effectiveness of ‘no body’ laws</h2>
<p>We recently <a href="https://journals.sagepub.com/doi/abs/10.1177/26338076221087458">looked into</a> the effectiveness of Queensland’s “no body, no parole” laws, which were passed in 2017. </p>
<p>As our work with RMIT University’s <a href="http://www.bohii.net/">Bridge of Hope Innocence Initiative</a> often involves working with people serving terms of imprisonment while claiming their innocence, evaluating the effectiveness of such laws and their risk for the wrongfully convicted is of considerable interest.</p>
<p>Most Australian jurisdictions don’t publish their parole decisions. However Queensland <a href="https://www.pbq.qld.gov.au/no-body-no-parole/decisions-of-the-board/">does</a> – specifically for “no body” law outcomes. </p>
<p>Our analysis showed that of the ten cases that came before the parole board during our collection period, six involved cooperation by the applicant but none resulted in remains being found.</p>
<p>The Queensland case of Graeme Evans, who was convicted of manslaughter over the death of his former partner Leeann Lapham in 2018, has been <a href="https://www.abc.net.au/news/2022-09-21/convicted-murderer-sue-neill-fraser-no-body-no-parole-laws/101457110">cited in the media</a> as an example of “no body” laws working effectively.</p>
<p>However, Evans pleaded guilty to the offence and was not eligible for parole at the time when he helped investigators find Lapham’s remains. </p>
<p>This example is only related to “no body” laws because the detective in charge of the case has claimed he used the threat of those laws to convince Evans to cooperate.</p>
<p>We believe “no body” laws lack evidence to support their use and may offer false hope to victims’ families if remains cannot be found. They rely on many assumptions about how crimes occur, how offenders may cooperate, and effective policing investigations post-disclosure.</p>
<p>They may also prove disastrous for the wrongfully convicted.</p>
<h2>What about the wrongfully convicted?</h2>
<p>We have no idea how many people have been wrongfully convicted in Australia. An estimate based on research from the United States indicates <a href="https://www.unswlawjournal.unsw.edu.au/article/wrongful-convictions-appeals-and-the-finality-principle-the-need-for-a-criminal-cases-review-commission">up to 3%</a> of all convictions may be wrongful. But the reality is we have no way of finding out. </p>
<p>A person can be found guilty of a crime they didn’t commit for <a href="https://innocenceproject.org/causes-wrongful-conviction./#:%7E:text=Contributing%20causes%20confirmed%20through%20Innocence,government%20misconduct%20and%20bad%20lawyering.">a variety of reasons</a>, including eyewitness misidentification, improper forensic evidence, coerced or otherwise false confessions, or police misconduct.</p>
<p>Wrongful convictions remain a persistent risk within our criminal justice system, even when high standards of procedural justice are upheld. </p>
<p>Wrongfully convicted prisoners face what is referred to as “<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=960125">the innocent prisoner’s dilemma</a>” when they become eligible for parole. If they maintain their innocence and refuse to admit responsibility or express remorse, they may be denied parole. If they do accept responsibility for a crime they did not commit, they may limit options in the future of having their conviction overturned. </p>
<p>“No body” laws add a further complication for the wrongfully convicted. The factually innocent are clearly unable to provide information to authorities about the location of the victim as they did not commit the crime and would not know where the body is. </p>
<p>A well known example is Lindy Chamberlain-Creighton, who was wrongfully convicted in 1982 for murdering her daughter Azaria. </p>
<p>Chamberlain was demonised publicly for not admitting guilt and for not leading investigators to Azaria’s body. A 2012 inquest later found Azaria was <a href="https://www.smh.com.au/national/dingo-took-azaria-chamberlain-coroner-finds-20120612-206wt.html">killed by a dingo</a>. </p>
<p>“No body” laws may at first appear to be acting in the public interest in ensuring families can bury their loved ones. But the lack of evidence of real outcomes and the very real risk it may disproportionately penalise the wrongfully convicted should give us pause before expanding this policy further.</p><img src="https://counter.theconversation.com/content/191083/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jarryd Bartle works for RMIT University's Bridge of Hope Innocence Initiative which examines cases of wrongful conviction that may be subject to no body, no parole laws.</span></em></p><p class="fine-print"><em><span>Greg Stratton works for RMIT University's Bridge of Hope Innocence Initiative which examines cases of wrongful conviction that may be subject to no body, no parole laws.</span></em></p><p class="fine-print"><em><span>Michele Ruyters works for RMIT University's Bridge of Hope Innocence Initiative which examines cases of wrongful conviction that may be subject to no body, no parole laws.
</span></em></p><p class="fine-print"><em><span>Monique Moffa works for RMIT University's Bridge of Hope Innocence Initiative which examines cases of wrongful conviction that may be subject to no body, no parole laws.</span></em></p>‘No body, no parole’ laws may at first appear to be in the public interest. But there’s a lack of evidence they work and a risk they may disproportionately penalise the wrongfully convicted.Jarryd Bartle, Associate Lecturer, RMIT UniversityGreg Stratton, Lecturer - Criminology and Justice Studies, RMIT UniversityMichele Ruyters, Associate Dean, Criminology and Justice Studies, RMIT UniversityMonique Moffa, Associate Lecturer, Criminology & Justice, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1858672022-06-29T05:42:35Z2022-06-29T05:42:35ZHow can we reverse the vaping crisis among young Australians? Enforce the rules<figure><img src="https://images.theconversation.com/files/471498/original/file-20220629-14-emka1y.jpg?ixlib=rb-1.1.0&rect=1%2C4%2C997%2C661&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">E-cigarettes and vape products are illegally imported into Australia. Some claim not to contain nicotine, but do.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/suffolk-uk-may-18-2019-new-1613347117">Simon Collins/Shutterstock</a></span></figcaption></figure><p>ABC TV’s Four Corners this week <a href="https://www.abc.net.au/4corners/vape-haze:-the-new-addiction-of-vaping/13948226">reported</a> how unlawful sale of e-cigarettes in Australia is out of control. </p>
<p>The program highlighted the effects on young people, in particular, including how easy it is for them to buy the products.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1539762788876181505"}"></div></p>
<p>How did this slow-moving public health train wreck unfold in broad daylight, almost a <a href="https://www.cancer.org.au/blog/extreme-caution-needed-on-electronic-cigarettes">decade after</a> the Cancer Council warned it was coming?</p>
<p>The answer is poor or non-existent enforcement of good laws.</p>
<h2>A growing problem</h2>
<p>The use of all harmful substances in young Australians is <a href="https://www.aihw.gov.au/reports/children-youth/alcohol-tobacco-and-other-drugs">declining</a> – except for e-cigarettes and <a href="https://www.aihw.gov.au/reports/illicit-use-of-drugs/national-drug-strategy-household-survey-2019/data">smoking in men</a> aged 18-24.</p>
<p>Lifetime use of e-cigarettes <a href="https://www.aihw.gov.au/reports/illicit-use-of-drugs/national-drug-strategy-household-survey-2019/data">increased</a> by 46% between 2016 and 2019 in non-smokers aged 18-24 – a huge spike in the use of a harmful substance in just three years.</p>
<p>Last week, an updated statement from the National Health and Medical Research Council <a href="https://www.nhmrc.gov.au/health-advice/all-topics/electronic-cigarettes/ceo-statement">reflected</a> increasing concerns from public health officials about the growing uptake of e-cigarettes, particularly by young people.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/471496/original/file-20220629-16-zlvpua.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="E-cigarettes: get the facts, public health campaign" src="https://images.theconversation.com/files/471496/original/file-20220629-16-zlvpua.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/471496/original/file-20220629-16-zlvpua.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=534&fit=crop&dpr=1 600w, https://images.theconversation.com/files/471496/original/file-20220629-16-zlvpua.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=534&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/471496/original/file-20220629-16-zlvpua.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=534&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/471496/original/file-20220629-16-zlvpua.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=672&fit=crop&dpr=1 754w, https://images.theconversation.com/files/471496/original/file-20220629-16-zlvpua.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=672&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/471496/original/file-20220629-16-zlvpua.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=672&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Public health officials are concerned about the growing use of e-cigarettes.</span>
<span class="attribution"><a class="source" href="https://www.nhmrc.gov.au/health-advice/all-topics/electronic-cigarettes/ceo-statement">NHMRC</a></span>
</figcaption>
</figure>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-damning-review-of-e-cigarettes-shows-vaping-leads-to-smoking-the-opposite-of-what-supporters-claim-180675">A damning review of e-cigarettes shows vaping leads to smoking, the opposite of what supporters claim</a>
</strong>
</em>
</p>
<hr>
<h2>But aren’t these illegal?</h2>
<p>Anyone using a nicotine e-cigarette without a valid doctor’s prescription has obtained the product unlawfully. Its importation was unlawful, as was its storage, sale and promotion.</p>
<p>Yet, as the Four Corners program showed, this is happening on an industrial scale. Merchants with a profit motive are promoting <a href="https://theconversation.com/a-damning-review-of-e-cigarettes-shows-vaping-leads-to-smoking-the-opposite-of-what-supporters-claim-180675">addictive products</a>, with no regard for the health of young people. </p>
<p>Retailers and online entrepreneurs are clearly not complying with current laws. And these laws are not being enforced.</p>
<h2>We need to target importation</h2>
<p>E-cigarettes are <a href="https://www.tobaccoinaustralia.org.au/chapter-18-harm-reduction/indepth-18b-e-cigarettes/18b-1-the-ecigarettemarket">not manufactured</a> in Australia. If their destination is not a pharmacy or someone with a valid prescription, their importation is <a href="https://www.tga.gov.au/nicotine-vaping-products-compliance-and-enforcement">unlawful</a>.</p>
<p>But it is clear, from the number of illegal e-cigarettes available in Australia, the federal government is not enforcing its own importation rules.</p>
<p>Attempts to amend <a href="http://www5.austlii.edu.au/au/legis/cth/num_reg_es/cianr2020202000791723.html">regulations</a> to further restrict imports were proposed in 2020. This would have enabled the Australian Border Force to intercept illegal e-cigarette imports.</p>
<p>However, the government assured the community that requiring all
non-tobacco nicotine products to only be available on prescription (<a href="https://www.tga.gov.au/nicotine-vaping-product-access">schedule 4 of the Poisons Standard</a>) would achieve the same result. It <a href="https://www.tga.gov.au/nicotine-vaping-product-access">said</a> this would protect young people from e-cigarettes.</p>
<p>It’s almost nine months since this came into effect in October 2021. Yet young people, in increasing numbers, are accessing e-cigarettes.</p>
<p>The scheduling standard and the rules underpinning it are clearly being ignored. The federal government must revisit proposals to allow interception of illegal e-cigarettes at the border or find another mechanism to block them.</p>
<h2>We need to target their sale</h2>
<p>Retailers and wholesalers are also breaking rules set out in <a href="https://www.tga.gov.au/media-release/tga-confirms-nicotine-e-cigarette-access-prescription-only">official advice</a> from the Therapeutic Goods Administration and corresponding information on state government <a href="https://www.health.nsw.gov.au/tobacco/Pages/e-cigarettes.aspx">websites</a>. </p>
<p>New South Wales Chief Health Officer Kerry Chant <a href="https://www.health.nsw.gov.au/news/Pages/20220516_00.aspx">has warned</a> that nicotine e-cigarette traders, other than pharmacies, could face prosecution, heavy fines and even jail.</p>
<p>Yet tobacconists, convenience stores and vape shops are still breaking the rules.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/471510/original/file-20220629-22-quxfkz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Rows of e-cigarettes for sale" src="https://images.theconversation.com/files/471510/original/file-20220629-22-quxfkz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/471510/original/file-20220629-22-quxfkz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=394&fit=crop&dpr=1 600w, https://images.theconversation.com/files/471510/original/file-20220629-22-quxfkz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=394&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/471510/original/file-20220629-22-quxfkz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=394&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/471510/original/file-20220629-22-quxfkz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=495&fit=crop&dpr=1 754w, https://images.theconversation.com/files/471510/original/file-20220629-22-quxfkz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=495&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/471510/original/file-20220629-22-quxfkz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=495&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">E-cigarettes and vaping products can be sold in plain view.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/kievukraine27-october2018-buy-new-vape-juice-1217375503">hurricane hank/Shutterstock</a></span>
</figcaption>
</figure>
<p>State and territory governments must enforce their laws, especially those being broken in plain view. Authorities can impose substantial fines for offenders, which would not only deter unlawful trade, it would fund additional enforcement.</p>
<p>There are also laws for the bulk storage and transport of schedule 4 poisons, such as nicotine. Four Corners showed how readily a film crew could expose breaches of these laws.</p>
<h2>If young people can find them, so can the authorities</h2>
<p>Young people told Four Corners they can access products without a prescription from online entrepreneurs importing, storing and selling nicotine e-cigarettes. </p>
<p>Seizing illegal imports will eventually dry up their supply, but there will be stockpiles. </p>
<p>If school children can access these suppliers and their products with a quick search on their smartphones, authorities can also find them and put them out of business.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/vaping-is-glamourised-on-social-media-putting-youth-in-harms-way-159436">Vaping is glamourised on social media, putting youth in harm's way</a>
</strong>
</em>
</p>
<hr>
<h2>What needs to happen next?</h2>
<p>E-cigarette use in young Australians is a crisis, but is fixable. The federal government must stop illegal imports, the states and territories must end the unlawful retail, wholesale and interstate trade.</p>
<p>The <a href="https://theconversation.com/a-damning-review-of-e-cigarettes-shows-vaping-leads-to-smoking-the-opposite-of-what-supporters-claim-180675">harms of e-cigarettes</a> are severe and far outweigh any modest benefits; there are laws to protect young people from them. </p>
<p>If the crisis worsens, more people will ask, how did this happen? The answer will be simple: governments made good laws, but they did not enforce them.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/its-safest-to-avoid-e-cigarettes-altogether-unless-vaping-is-helping-you-quit-smoking-123274">It's safest to avoid e-cigarettes altogether – unless vaping is helping you quit smoking</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/185867/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Grogan is employed by the Daffodil Centre, a joint cancer research venture between Cancer Council NSW and the University of Sydney. He is an investigator on a current research project on e-cigarette use in young people jointly funded by the NSW Government and the Minderoo Foundation, with in-kind support from Cancer Council NSW.</span></em></p>If the crisis worsens, more people will ask, how did this happen? The answer will be simple: governments made good laws, but they did not enforce them.Paul Grogan, Adjunct Senior Lecturer, The Daffodil Centre, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1842082022-06-06T12:49:49Z2022-06-06T12:49:49ZThere are historical and psychological reasons why the legal age for purchasing assault weapons does not make sense<figure><img src="https://images.theconversation.com/files/467016/original/file-20220603-17-xktp4x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A boy examines a gun at the National Rifle Association annual convention on May 28, 2022, in Houston. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/boy-examines-a-firearm-at-the-george-r-brown-convention-center-during-picture-id1399796874?s=2048x2048">Brandon Bell/Getty Images</a></span></figcaption></figure><p>The Uvalde and Buffalo mass shootings in May 2022 had at least two things in common: The shooters were 18 years old, and they had both legally purchased their own assault rifles. </p>
<p>The shooters’ young age was not an aberration. The <a href="https://theconversation.com/what-we-know-about-mass-school-shootings-in-the-us-and-the-gunmen-who-carry-them-out-183812">average age of school shooters is 18, when tracking incidents since 1966</a>. </p>
<p>The relatively young age of most mass shooters has <a href="https://www.propublica.org/article/why-18-year-olds-in-texas-can-buy-ar-15s-but-not-handguns">ignited conversations</a> about the minimum legal age for purchasing firearms.</p>
<p>When it comes to gun laws, there is clearly a legal debate about how to define adulthood. But there is also a complex history of how societies determine adulthood, as I’ve examined in my work on the <a href="https://www.shcy.org/features/books/defining-girlhood-in-india/">age of marriage and sexual consent</a>. </p>
<p>Considering someone an adult once they turn 18 is a relatively recent trend, and it’s not clear that it can stand up to public scrutiny as a meaningful threshold for legally purchasing firearms.</p>
<h2>A push for age limits</h2>
<p>In the Parkland, Fla., school shooting in 2018, <a href="https://www.history.com/this-day-in-history/parkland-marjory-stoneman-douglas-school-shooting">the shooter was</a> 19. The <a href="https://abcnews.go.com/US/disturbing-things-learned-today-sandy-hook-shooter-adam/story?id=27087140">Sandy Hook Elementary School shooter</a> in Newtown, Conn., was 20 years old. And the shooters at the <a href="https://www.history.com/topics/1990s/columbine-high-school-shootings">Columbine High School</a> massacre in Littleton, Colo., in 1999 were 18 and 17. </p>
<p>Following the Uvalde massacre, Democratic Texas state senators called for <a href="https://www.texastribune.org/2022/05/28/texas-senate-democrats-special-session-uvalde/">an emergency legislative session</a> to raise the minimum age to purchase firearms in the state from from 18 to 21, which Governor Greg Abbott <a href="https://www.ksat.com/news/local/2022/06/01/greg-abbott-signed-law-3-years-ago-to-raise-minimum-age-for-tobacco-from-18-to-21-in-texas/">has resisted</a>. </p>
<p>The day after the Buffalo massacre, on May 15, 2022, New York Gov. Kathy Hochul called to <a href="https://www.timesunion.com/state/article/Hochul-calls-to-raise-the-age-to-purchase-an-17198169.php">raise the age to purchase assault rifles from 18 to 21</a>. The New York State legislature <a href="https://www.npr.org/2022/06/03/1102842024/new-york-bill-age-buy-own-rifles">then voted on</a> June 2 to ban anyone under the age of 21 from buying assault weapon. </p>
<p>On June 2, President Joe Biden <a href="https://www.npr.org/2022/06/02/1102660499/biden-gun-control-speech-congress">also called</a> for a ban on assault rifles – or for raising the age when someone is allowed to purchase one. </p>
<p>On the other side of the issue, the National Rifle Association has challenged state laws in <a href="https://www.wlrn.org/news/2022-03-25/federal-appeals-court-hears-arguments-on-florida-ban-on-gun-sales-to-those-under-21">Florida</a> and <a href="https://www.csmonitor.com/USA/Justice/2022/0512/Court-strikes-down-California-age-limit-on-gun-sales">California</a> that restrict people under 21 from buying rifles. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/466986/original/file-20220603-20-qw89sy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Adults stand behind children, holding balloons, in front of white cross memorials." src="https://images.theconversation.com/files/466986/original/file-20220603-20-qw89sy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/466986/original/file-20220603-20-qw89sy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/466986/original/file-20220603-20-qw89sy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/466986/original/file-20220603-20-qw89sy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/466986/original/file-20220603-20-qw89sy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/466986/original/file-20220603-20-qw89sy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/466986/original/file-20220603-20-qw89sy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People visit memorials for victims of the Robb Elementary School shooting on May 26, 2022, in Uvalde, Texas.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/people-visit-memorials-for-victims-of-tuesdays-mass-shooting-at-a-picture-id1399478668?s=2048x2048">Michael M. Santiago/Getty Images</a></span>
</figcaption>
</figure>
<h2>When adulthood begins</h2>
<p>Several news outlets, including The <a href="https://apnews.com/article/uvalde-texas-school-shooting-may-24-584466945120">Associated Press</a> and <a href="https://www.nytimes.com/live/2022/05/24/us/shooting-robb-elementary-uvalde">The New York Times</a>, called the mass shooters in <a href="https://www.nytimes.com/live/2022/05/14/nyregion/buffalo-shooting">Buffalo</a> and Uvalde “men” and “gunmen” in their coverage. Some observers argued that these terms were <a href="https://theconversation.com/what-we-know-about-mass-school-shootings-in-the-us-and-the-gunmen-who-carry-them-out-183812">accurate</a> because the age of the shooters was 18.</p>
<p>But there is no single, cohesive legal answer to whether 18-year-olds are actually adults, in every respect. </p>
<p>In most U.S. states, 18 is the <a href="https://www.law.cornell.edu/wex/legal_age">legal age of majority</a> – this is the age when people are no longer entitled to parental support, can be emancipated from their parents or foster care, tried as adults for crimes, and enlist for military service. But not all states follow this age standard – in a few states, the age is <a href="https://www.law.cornell.edu/wex/table_emancipation">19 or 21</a>.</p>
<p>Adulthood wasn’t always set at 18 in the U.S., either. The legal age of adulthood was 21 for several centuries in the U.S., a holdover from colonial rule reflecting a British <a href="https://www.jstor.org/stable/844549">feudal custom</a> relating to when knighthood was possible. </p>
<p>In the early 1970s, following a congressional push to make the voting age consistent with the age of compulsory enlistment in the army, the 26th Amendment lowered the voting age from 21 to 18. <a href="https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2863&context=facpubs">In the following years</a>, most states classified someone as an adult at the age of 18, aligning with the voting age. </p>
<p>This age does not rigidly define adulthood across every legal context, though. </p>
<p>Generally, at 18, a person can participate in activities that require a certain amount of cognitive independence, such as voting, consent to medical treatment and the right to sue someone. </p>
<p>Most states set the age of sexual consent between <a href="https://aspe.hhs.gov/reports/statutory-rape-guide-state-laws-reporting-requirements-1">16 to 18 years</a>. The federal age of marriage is 18, but most states set a <a href="https://worldpopulationreview.com/state-rankings/marriage-age-by-state">lower age for marriage with parental consent</a>. Even in other parts of the globe, as I note in my <a href="https://www.press.uillinois.edu/books/?id=p084560">book</a> about the transnational history of marriage laws, parental consent determines the legal age standards for marriage. </p>
<h2>A higher limit</h2>
<p>On the other hand, some activities that can directly harm others and oneself have a higher age threshold. </p>
<p>The federal minimum legal drinking age is 21 because, after being dropped to 18 in the 1970s, an increase in drunken driving fatalities pushed states to raise it again to age 21 in the 1980s. </p>
<p>Government studies showed that states with the minimum drinking age of 18 had higher <a href="https://one.nhtsa.gov/people/outreach/traftech/tt261.htm">motor vehicle fatalities</a>. </p>
<p>Drivers below the age of 25 also find it <a href="https://www.jdpower.com/cars/shopping-guides/how-old-do-you-have-to-be-to-rent-a-car">either difficult or more expensive</a> to rent a car, given the higher risks of accidents for the car, the driver and others on the road.</p>
<p>The age threshold is also higher for activities involving financial risk.</p>
<p>For example, someone under the age of 21 needs a co-signer to get a credit card in their own name because of the <a href="https://www.law.cornell.edu/wex/credit_card_accountability_responsibility_and_disclosure_act_of_2009#:%7E:text=in%20Lending%20Act.-,The%20Credit%20Card%20Accountability%20Responsibility%20and%20Disclosure%20Act%20of%202009,and%20interest%20rates%20associated%20with">Credit Card Accountability Responsibility and Disclosure Act</a>, passed in 2009. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/466987/original/file-20220603-11-nnyzsp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man holds an AK-47, picking one off a white wall with other guns" src="https://images.theconversation.com/files/466987/original/file-20220603-11-nnyzsp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/466987/original/file-20220603-11-nnyzsp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/466987/original/file-20220603-11-nnyzsp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/466987/original/file-20220603-11-nnyzsp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/466987/original/file-20220603-11-nnyzsp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/466987/original/file-20220603-11-nnyzsp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/466987/original/file-20220603-11-nnyzsp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An attendee holds AK-47 style semi-automatic rifles during the National Rifle Association annual meeting in Houston on May 28, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/attendees-hold-american-made-ak47-style-762mm-semiautomatic-rifles-picture-id1240972852?s=2048x2048">Patrick T. Fallon/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Phased-in adulthood</h2>
<p>Researchers who study adolescent brain development argue that different types of maturity develop along distinct timelines. They offer <a href="https://journals.sagepub.com/doi/full/10.1177/0956797615627625?casa_token=eSt6BjPhE0QAAAAA%3A5OseknFYq0g0qZfzupBhxbq6wLMPBLZu4j4-J69Q8MydRFjWS6IVOWQkshXpdu1Pim67KA1F5LxrBg">nuanced distinctions</a> between the ability to reason in a systematic way, which typically happens around age 16, and decision-making that involves emotion and risk assessment. This can take <a href="https://journals.sagepub.com/doi/full/10.1177/0956797615627625?casa_token=eSt6BjPhE0QAAAAA%3A5OseknFYq0g0qZfzupBhxbq6wLMPBLZu4j4-J69Q8MydRFjWS6IVOWQkshXpdu1Pim67KA1F5LxrBg">many more years to develop</a>. </p>
<p>Such cognitive growth in fact continues until <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6970937/">around age 25</a>. </p>
<p>For these reasons, some legal scholars argue strongly <a href="https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2863&context=facpubs">against an absolute single standard</a> for adulthood – one that holds across all activities. </p>
<p>The series of recent mass shootings by teenagers is challenging legal standards about when someone is an adult and can legally purchase firearms. Emotional maturity – the ability to recognize and process one’s fear, to control impulses – should ideally be a facet of gun ownership, if civilians are to have access to guns at all. The decision to pull a trigger requires exactly the kind of forethought that neuroscientists argue develops slowly. </p>
<p>In most legal contexts, activities that can put others at risk are not permissible at age 18. Adult status is actually granted in phases, depending on the activities in question. There is a strong case to be made on both historical and scientific grounds that 18-year-olds should not be allowed to purchase firearms.</p><img src="https://counter.theconversation.com/content/184208/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ashwini Tambe does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The shooters in the Buffalo and Uvalde massacres were both 18, and legally purchased assault rifles. This is fueling calls to raise the age when someone can purchase this weapon from 18 to 21.Ashwini Tambe, Professor and Director, Women's, Gender, and Sexuality Studies; Editorial Director, Feminist Studies, George Washington UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1662302021-09-22T12:58:23Z2021-09-22T12:58:23ZSpreading HIV, the virus that causes AIDS, is against the law in 37 states – with penalties ranging up to life in prison<figure><img src="https://images.theconversation.com/files/417668/original/file-20210824-19578-1mmip0.jpg?ixlib=rb-1.1.0&rect=56%2C0%2C6240%2C4082&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Medical experts have recommended that HIV criminal laws be revised.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/prisoner-at-the-bolivar-county-correctional-facility-waits-news-photo/1315034536">Spencer Platt / Staff / via Getty Images News</a></span></figcaption></figure><p>Despite the fact that HIV is now a treatable medical condition, the majority of U.S. states still have laws on the books that criminalize exposing other people to HIV. Whether or not the virus is transmitted does not matter. Neither does a person’s intention to cause harm. A person simply must be aware of being HIV-positive to be found guilty. </p>
<p>These laws are <a href="https://doi.org/10.1007/s10461-013-0408-1">enforced mainly on marginalized people living in poverty</a> who cannot afford lawyers. The penalties – <a href="https://www.hivlawandpolicy.org/news/chlp-releases-date-analysis-us-laws-criminalize-disease-2020">felony convictions and being placed on sex offender registries</a> – are severe and life altering. </p>
<p>It is difficult to know exactly how many people are affected by HIV criminal laws, since a central <a href="https://doi.org/10.1007/s10461-016-1540-5">database of such arrests does not exist</a>. The HIV Justice Network has collected a <a href="https://www.hivjustice.net/country/us/?">partial list of 2,923 HIV criminal cases</a> since 2008 based on media reports. </p>
<p>I am a <a href="https://scholar.google.com/citations?hl=en&user=pR7k3XQAAAAJ">professor of social work</a> who studies the impact of HIV criminal laws <a href="https://doi.org/10.1080/15381501.2021.1963385">from the perspective of people who have been arrested</a>. My research shows such statutes are outdated, harm people living with HIV and exacerbate the spread of the virus by driving people into hiding and away from treatment services. </p>
<h2>The early years of AIDS</h2>
<p>In 1981, the U.S. Centers for Disease Control and Prevention reported <a href="https://pubmed.ncbi.nlm.nih.gov/6789108/">the first cases</a> of what later would be called acquired immune deficiency syndrome, or AIDS. By 1982, researchers had strong evidence the disease could be transmitted through blood and sexual activity. At the time, the <a href="https://doi.org/10.1126/science.7089584">death rate for AIDS patients was estimated to be 65%</a>. </p>
<p>In 1983, scientists discovered the <a href="https://doi.org/10.1126/science.6189183">retrovirus that causes AIDS</a> and named it the human immunodeficiency virus, or HIV. Initially, HIV infection was reported mainly in gay men, but as time went on, <a href="https://ari.ucsf.edu/about-us/history-aids-ucsf">it was diagnosed in other populations, including women and children</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/421401/original/file-20210915-16-1tynro6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three people at cubicle desks under a banner reading 'National AIDS Hotline - Information, Education, Referrals.'" src="https://images.theconversation.com/files/421401/original/file-20210915-16-1tynro6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/421401/original/file-20210915-16-1tynro6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=404&fit=crop&dpr=1 600w, https://images.theconversation.com/files/421401/original/file-20210915-16-1tynro6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=404&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/421401/original/file-20210915-16-1tynro6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=404&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/421401/original/file-20210915-16-1tynro6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=508&fit=crop&dpr=1 754w, https://images.theconversation.com/files/421401/original/file-20210915-16-1tynro6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=508&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/421401/original/file-20210915-16-1tynro6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=508&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Operators at the National AIDS Hotline run by the American Social Health Association in 1991.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AIDSEPIDEMIC1991/9c157ac90ce8da11af9f0014c2589dfb/">AP Photo/Karen Tam</a></span>
</figcaption>
</figure>
<p>In 1994, <a href="https://www.hiv.gov/hiv-basics/overview/history/hiv-and-aids-timeline">AIDS was the leading cause of death</a> for all Americans ages 25 to 44. Medical treatment for the disease was in its infancy. Both factors fueled the public’s fear of being exposed to AIDS. A diagnosis seemed like a death sentence.</p>
<h2>Criminal laws</h2>
<p>The 1988, Ronald Reagan’s <a href="https://doi.org/10.1111/j.1746-1561.1988.tb00559.x">Presidential Commission on the HIV Epidemic</a> recommended that states establish criminal penalties as a way of deterring people with HIV from engaging in behavior likely to transmit the virus. The <a href="https://www.govtrack.us/congress/bills/101/s2240/text">1990 Ryan White CARE Act</a>, which provided major funding for HIV services, required states to certify they had adequate laws in place to prosecute individuals who knowingly exposed another person to HIV.</p>
<p>In 1990, 14 states had HIV criminal laws. By 2005, <a href="https://doi.org/10.1007/s10461-006-9117-3">23 states had them</a> – even though the <a href="https://bibleandbookcenter.com/read/ryan-white-care-act-reauthorization/">reauthorization of the Ryan White CARE Act in 2000</a> removed the criminalization requirement. Today, these laws are <a href="https://www.cdc.gov/hiv/policies/law/states/exposure.html">on the books in 37 states</a>.</p>
<h2>Unintended consequences</h2>
<p>From the outset, experts across many disciplines <a href="https://www.ucpress.edu/book/9780520291607/punishing-disease">voiced concern about the effectiveness of using punitive criminal laws</a> as a way of deterring the spread of HIV.</p>
<p>Indeed, HIV criminal laws have backfired from a public health perspective. A 2017 study found people living in states with HIV criminal laws are <a href="https://doi.org/10.1097/QAD.0000000000001636">less likely to get tested and know their HIV status</a> than those in states without HIV laws. Stigma and fear of prosecution discourage people from seeking information or help.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/418103/original/file-20210826-25-1vjp2pq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People in a parade carrying a banner that reads 'HIV Stigma Stops Here.'" src="https://images.theconversation.com/files/418103/original/file-20210826-25-1vjp2pq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/418103/original/file-20210826-25-1vjp2pq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/418103/original/file-20210826-25-1vjp2pq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/418103/original/file-20210826-25-1vjp2pq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/418103/original/file-20210826-25-1vjp2pq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/418103/original/file-20210826-25-1vjp2pq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/418103/original/file-20210826-25-1vjp2pq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Minnesota AIDS Project banner at the Twin Cities Pride Parade in Minneapolis in 2013.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/87296837@N00/9180874836">Tony Webster/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>This lack of knowledge is significant because pharmaceutical treatments, beginning in 1996 with highly active antiretroviral therapy, or HAART, have steadily <a href="https://www.niaid.nih.gov/diseases-conditions/hiv-treatment">transformed HIV into a chronic manageable condition</a>.</p>
<p>Medical experts have <a href="https://doi.org/10.1007/s10461-016-1540-5">recommended that HIV criminal laws be revised</a>. However, <a href="https://scholarship.law.cornell.edu/clr/vol94/iss3/13">most state legislatures have not done so</a>. </p>
<p><a href="https://www.hivjustice.net/global-hiv-criminalisation-database/cases/">These laws are regularly enforced</a> – most often on members of stigmatized groups, including those who are <a href="https://doi.org/10.1007/s10461-013-0408-1">homeless or suffering from an addiction or mental illness</a>. Research has also documented that HIV criminal laws are <a href="https://www.thebody.com/article/hiv-criminalization-and-people-of-color">disproportionately applied to people of color</a>. In fact, the majority of people arrested for an HIV crime <a href="https://doi.org/10.1007/s10461-013-0408-1">are members of multiple minority communities</a>. </p>
<p>Being arrested for an HIV-related crime is often devastating for individuals – beginning with the permanent exposure of personal health information to the public. For indigent defendants, felony charges pursued by a county’s district attorney will result in the appointment of a <a href="https://vanderbiltlawreview.org/lawreview/2020/05/plea-bargaining-and-collateral-consequences-an-experimental-analysis/">public defender, who will most likely counsel a guilty plea</a> – regardless of whether the individuals believe they are guilty or even understand the consequences of such a plea. </p>
<p>Sentences for violating HIV exposure statutes are comparable to sentences for vehicular homicide and <a href="https://www.cdc.gov/hiv/policies/law/states/exposure.html">can be as severe as life in prison</a>. A 2017 analysis of 393 convictions in Arkansas, Florida, Louisiana, Michigan, Missouri and Tennessee found the <a href="https://www.ucpress.edu/book/9780520291607/punishing-disease">average sentence for an HIV-related crime was 92 months</a> – or nearly eight years in prison. </p>
<p>Incarceration can result in <a href="https://www.brennancenter.org/sites/default/files/2020-09/EconomicImpactReport_pdf.pdf">permanent restrictions on employment, housing, education and voting</a>. </p>
<p>Additionally, six states currently <a href="https://www.hivlawandpolicy.org/resources/chart-state-state-criminal-laws-used-prosecute-people-hiv-center-hiv-law-and-policy-2012">place people convicted of an HIV-related crime on the sex offender registry</a>, which results in lifetime sex offender status – a relentless and unending punishment. </p>
<h2>Treatment lowers risk</h2>
<p>The HIV epidemic in the U.S. has changed tremendously in the past 40 years. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/417666/original/file-20210824-17640-4ofpwm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three people hold signs saying 'Free HIV testing now' and 'Ask about Prep/Pep now.'" src="https://images.theconversation.com/files/417666/original/file-20210824-17640-4ofpwm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/417666/original/file-20210824-17640-4ofpwm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/417666/original/file-20210824-17640-4ofpwm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/417666/original/file-20210824-17640-4ofpwm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/417666/original/file-20210824-17640-4ofpwm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/417666/original/file-20210824-17640-4ofpwm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/417666/original/file-20210824-17640-4ofpwm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Volunteers hold signs promoting free HIV testing and information during the Harlem Pride parade in New York City on June 29, 2019.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/volunteers-hold-signs-as-they-promote-free-hiv-testing-news-photo/1152819576">KENA BETANCUR / Contributor / AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>HIV exposure laws have not kept up with the changes in HIV science and treatment. People with knowledge of their HIV status can <a href="https://www.cdc.gov/hiv/risk/art/index.html">receive treatment that makes them unable to transmit the virus</a>. Proven prevention methods such as <a href="https://www.cdc.gov/nchhstp/newsroom/docs/factsheets/HIV-Proven-Prevention-Methods-508.pdf">HIV testing, treatment and preexposure prophylaxis, or PrEP</a>, are tools that remove the justification for HIV criminal laws.</p>
<p>Scientists can identify solutions to public health challenges, but it takes action by <a href="https://www.annualreviews.org/doi/pdf/10.1146/annurev.publhealth.25.101802.123126">politicians to turn solutions into policy</a>. HIV criminal laws are largely ignored because the people they directly affect are not connected to political power. </p>
<p>Bipartisan support is needed to replace existing laws with proven public health interventions.</p>
<p>[<em>Get the best of The Conversation, every weekend.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybest">Sign up for our weekly newsletter</a>.]</p><img src="https://counter.theconversation.com/content/166230/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robin Lennon-Dearing has recieved funding from the University of Memphis Foundation and currently receives funding from the National Institutes of Health under Grant 2P30AI042853-21. She is a member and consultant for the Tennessee HIV Modernization Coalition.</span></em></p>Current HIV criminal laws increase HIV stigma and discrimination against marginalized people – and negatively affect public health.Robin Lennon-Dearing, Associate Professor of Social Work, University of MemphisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1640902021-07-26T15:23:29Z2021-07-26T15:23:29ZThe ‘privacy by design’ approach for mobile apps: why it’s not enough<figure><img src="https://images.theconversation.com/files/412626/original/file-20210722-13-o8wjl7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Mobile apps on smartphones are threats to digital privacy </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/8th-grade-teacher-uses-a-smartphone-to-mark-a-swahili-news-photo/1211271275?adppopup=true">Yasuyoshi Chiba/AFP via Getty Images </a></span></figcaption></figure><p>The mobile apps installed on our smartphones are one of the biggest threats to our <a href="https://ec.europa.eu/justice/article-29/documentation/opinion-recommendation/files/2013/wp202_en.pdf">digital privacy</a>. They are capable of collecting vast amounts of personal data, often highly sensitive. </p>
<p>The consent model on which privacy laws are based doesn’t work. App users remain concerned about privacy, as a recent <a href="https://www.yellowbrick.com/press-releases/yellowbrick-survey-pandemic-era-consumers-love-apps-but-have-security-concerns/">survey</a> shows, but they still aren’t very good at protecting it. They may lack the technical know-how or the time to review privacy terms, or they may lack the willpower to resist the lure of trending apps and personalised in-app offers.</p>
<p>As a result privacy laws have become more detailed, imposing additional requirements about notice, data minimisation, and user rights. Penalties have become harsher. And the laws are often global in reach, such as the <a href="https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/childrens-online-privacy-protection-rule">US Children’s Online Privacy Protection Rule</a> and the EU’s <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679">General Data Protection Regulation</a>. For instance, a South African developer of an app downloaded by children in the US and the EU must comply with both and with <a href="https://www.gov.za/documents/protection-personal-information-act#:%7E:text=The%20Protection%20of%20Personal%20Information,by%20public%20and%20private%20bodies%3B&text=to%20regulate%20the%20flow%20of,provide%20for%20matters%20connected%20therewith.">South Africa’s Protection of Personal Information Act</a>. This complexity can create a significant compliance burden. </p>
<p>But the real problem, according to a <a href="https://www.enisa.europa.eu/publications/privacy-and-data-protection-in-mobile-applications">report</a> by the EU Agency for Cybersecurity, is that lawyers and app developers don’t speak the same language. An app developer may have no idea how to translate abstract legal principles into concrete engineering steps.</p>
<p>As a result regulators have looked to the concept of <a href="https://iapp.org/media/pdf/resource_center/pbd_implement_7found_principles.pdf">“privacy by design”</a> as a way to bridge this divide. The concept was coined in the late 1990s by Ann Cavoukian when she was the Information and Privacy Commissioner for Ontario, Canada. Privacy by design goes beyond privacy policies and in-app permission settings. It requires developers to think about privacy from the first moment of the design process. </p>
<p>Cavoukian set out seven foundational principles for a privacy by design approach. But it is the second principle, “privacy as a default setting”, that really sets the bar for a privacy-friendly app.</p>
<blockquote>
<p>Build in the maximum degree of privacy into the default settings for any system or business practice. Doing so will keep a user’s privacy intact, even if they choose to do nothing.</p>
</blockquote>
<p>This places the responsibility on the app developer to think about the user’s privacy upfront, and design the app in such a way that privacy is protected automatically, while still offering a fully functional app experience.</p>
<p>But <a href="https://researchspace.ukzn.ac.za/xmlui/handle/10413/19431">my research</a> showed that design decisions made by app developers are constrained by existing technologies and platform rules designed by others. These include the device hardware and operating system, the software development kit, ad libraries and app store review policies.</p>
<p>The answer is <a href="https://iapp.org/resources/article/06-22-2012-privacy-by-redesign-a-practical-framework-for-implementation/">privacy by (re)design</a>, where all roleplayers in the ecosystem take privacy seriously and redesign existing platforms and technologies. But enforcing that approach will require tighter legal regulation of third party data sharing.</p>
<h2>Change of mindset</h2>
<p>Applying a privacy by design approach requires a change of mindset by developers. They must be proactive, rather than responding after the fact to a data breach that could have been prevented. The days of collecting as much personal data as possible in the hope that it might prove valuable later are gone. Developers must align data collection to a specific purpose for which the data is needed and communicate that to app users. They should also anonymise or delete the data as soon as possible. </p>
<p>Privacy should become a key component of design methodology, selection of technical tools, and organisational value statements.</p>
<p>These are important changes, endorsed in guidelines for mobile app developers published by the <a href="https://iapp.org/media/pdf/resource_center/gsmaprivacydesignguidelinesformobileapplicationdevelopmentv1%20%281%29.pdf">Global System for Mobile Communications</a> and by regulators in the <a href="https://www.ftc.gov/sites/default/files/documents/public_statements/privacy-design-and-new-privacy-framework-u.s.federal-trade-commission/120613privacydesign.pdf">US</a>, the <a href="https://ico.org.uk/media/for-organisations/documents/1596/privacy-in-mobile-apps-dp-guidance.pdf">UK</a>, <a href="https://www.oaic.gov.au/privacy/guidance-and-advice/mobile-privacy-a-better-practice-guide-for-mobile-app-developers/">Australia</a> and <a href="https://www.ipc.on.ca/wp-content/uploads/Resources/pbd-asu-mobile.pdf">Canada</a>, among others. In the EU “data protection by design and by default” is now <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679">a legal obligation</a> of the General Data Protection Regulation.</p>
<p>But, as my research shows, this might not be enough without the redesign of the app ecosystem to address data sharing, a view supported by other research. According to <a href="https://dl.acm.org/doi/10.1145/3201064.3201089">one study</a> most apps transmit data directly to third parties, like Google, Facebook and ad exchanges, via trackers embedded in the app code. But I found that privacy laws do not comprehensively or consistently address this third party sharing. </p>
<p>The term “third party” is not defined in the Protection of Personal Information Act, but would include ad networks, content-sharing sites and social networking platforms. Third parties are thus distinguished from downstream processors who may perform specified data processing on your behalf under a contract. </p>
<p>It is difficult to enforce legal liability against these third parties, who are often outside the country where the app was developed. Their terms and conditions typically place full responsibility for privacy compliance by the app on the app developer. This may leave app users unprotected. But it could also expose the app developer to unforeseen legal liability. </p>
<p>Liability for the app developer arises because under both the Protection of Personal Information Act and General Data Protection Regulation if you played a role in determining “the purpose or means” of data processing you are a “joint” responsible party (data controller) for the data processed by the third party. </p>
<p>The European Court of Justice has twice held small businesses liable as “joint controllers” for Facebook’s collection of data, via a <a href="https://curia.europa.eu/juris/liste.jsf?num=C-210/16">fan page</a> and a <a href="https://curia.europa.eu/juris/liste.jsf?num=C-40/17">like</a> button. Although the judgments stress that joint control is not necessarily “equal liability”, this should still be a concern for app developers.</p>
<p>For example, app developers using the Facebook Software Development Kit are sharing personal data with Facebook. Event logs such as “app installed”, “SDK initialised” and “app deactivated” give detailed demographic and behavioural insights about an app user. In 2018 Privacy International <a href="https://privacyinternational.org/report/2647/how-apps-android-share-data-facebook-report">reported</a> that the setting to delay transmission of logged events until after the user has consented was only added by Facebook 35 days after General Data Protection Regulation came into force, and then only if enabled by the developer for SDK version 4.34 or higher. This change appears to have followed repeated bug reports filed on the developer’s platform. </p>
<h2>Take aways</h2>
<p>The takeaway here for developers following a privacy by design approach is to “<a href="https://iapp.org/media/pdf/resource_center/pbd_implement_7found_principles.pdf">trust but verify</a>”:</p>
<ul>
<li><p>Check contract terms and third party code carefully;</p></li>
<li><p>Monitor developer platforms for security and privacy updates;</p></li>
<li><p>Only work with organisations that offer adequate privacy guarantees;</p></li>
<li><p>Notify your users about data transfers to third parties and provide easy to use privacy controls.</p></li>
<li><p>Keep logs so that you can respond promptly if an app user requests details of the personal data you hold and the recipients (or categories of recipients) of that data.</p></li>
</ul>
<p>Prosecuting app developers who breach data laws is important but not enough. Ultimately the parties who design the technologies and platforms on which mobile apps are built and marketed must be brought within the legal accountability framework to close the privacy loop.</p><img src="https://counter.theconversation.com/content/164090/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The financial assistance of the National Research Foundation (NRF) and University Capacity Development Programme (UCDP) is hereby gratefully acknowledged. Opinions expressed and conclusions arrived at are those of the author and are not to be attributed to the NRF. </span></em></p>Parties who design the technologies and platforms on which mobile apps are built and marketed must be brought within the legal accountability framework to close the privacy loop.Dusty-Lee Donnelly, Lecturer in Law & Advocate, High Court of South Africa, University of KwaZulu-NatalLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1538302021-04-28T19:05:12Z2021-04-28T19:05:12ZInternships in Congress overwhelmingly go to white students<figure><img src="https://images.theconversation.com/files/397369/original/file-20210427-17-tkrd76.jpg?ixlib=rb-1.1.0&rect=15%2C0%2C5193%2C3480&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">About three out of every four paid Capitol Hill interns are white. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/caucasian-teenagers-talking-to-politicians-in-royalty-free-image/633709309?adppopup=true">Hill Street Studios/DivisionVision via Getty Images</a></span></figcaption></figure><p><em>The <a href="https://theconversation.com/us/topics/research-brief-83231">Research Brief</a> is a short take about interesting academic work.</em></p>
<h2>The big idea</h2>
<p>When it comes to paid congressional internships, white students get more than their fair share, but Black and Latino students don’t get enough.</p>
<p>That is the <a href="https://payourinterns.org/congressional-report">key finding of a new report</a> I co-authored with Tiffany Win and Carlos Mark Vera for Pay Our Interns, a Washington, D.C.-based nonprofit that is pushing to increase the number of paid internships in various sectors.</p>
<p>These racial disparities come despite <a href="https://www.washingtonpost.com/politics/paid-internships-are-a-reality-again-in-congress-after-public-shaming/2019/03/12/ff371f54-44e9-11e9-94ab-d2dda3c0df52_story.html">2018 legislation</a> that provides House and Senate offices with allowances exclusively for paid internships. I investigated whom congressional offices hired with these allowances during the first year that this funding was available in 2019.</p>
<p>I found that while white students make up only <a href="https://nces.ed.gov/fastfacts/display.asp?id=98">56% of undergraduate college students</a> nationwide, they accounted for 76% of paid interns in Congress. In contrast, Black and Latino students <a href="https://nces.ed.gov/fastfacts/display.asp?id=98">make up</a> <a href="https://nces.ed.gov/fastfacts/display.asp?id=98">14% and 19%</a> of all undergraduates, respectively, but accounted for only 6.7% and 7.9% of paid congressional interns, respectively.</p>
<h2>Why it matters</h2>
<p>Racial representation among paid congressional internships is important because internships often lead to paid staff positions. In a 2020 <a href="https://www.newamerica.org/political-reform/reports/congressional-brain-drain/">study of congressional staff</a>, over 50% indicated that they started their careers on Capitol Hill as interns. Accordingly, if people of color are underrepresented among paid congressional interns, they will similarly be underrepresented among legislative staff.</p>
<p>That matters because congressional staff are important behind-the-scenes actors in making American law. They provide critical advice, guidance and analysis to lawmakers. Congressional staffers are also involved in nearly all dimensions of legislative work, from coming up with ideas to providing services for constituents to the oversight of the federal government and day-to-day operations of the legislature.</p>
<p>If the only staffers in the room advising members of Congress on policymaking decisions are white, then the policies this nation makes may not be as richly informed as they would otherwise be.</p>
<p>In addition, congressional employment provides a stepping stone to elected office. Today, the highest-ranking women in government, Vice President <a href="https://www.rollcall.com/2016/11/25/interns-you-could-be-in-congress-one-day-too/">Kamala Harris</a> and Speaker of the House <a href="https://cnsmaryland.org/2006/11/15/former-u-s-senator-recalls-hoyer-pelosi-in-bygone-days/">Nancy Pelosi</a>, both began their political careers as congressional interns. </p>
<p>When people get firsthand experience with how American democracy works, it better enables them to see themselves as leaders and public servants.</p>
<p>[<em>Get the best of The Conversation, every weekend.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybest">Sign up for our weekly newsletter</a>.]</p>
<h2>What still isn’t known</h2>
<p>While our report examines the racial makeup of paid congressional interns, Congress does not collect or publish data on unpaid interns. To this end, it’s not known how many unpaid interns there are or the racial makeup of this group. Some congressional offices may pay their interns with funding beyond the allowances they get for interns, but we don’t believe many do.</p>
<h2>What’s next</h2>
<p>There are still a lot of unknowns about who works in Congress. My future research will continue to examine racial representation among congressional staff and the mechanisms that lead to racial inequities on Capitol Hill. I also plan to continue to urge Congress to adopt more transparent hiring practices so that this problem can be better understood.</p>
<h2>How we do our work</h2>
<p>We analyzed congressional payroll data, which provides the names of every paid intern. From the list of people who interned in Congress between April and September 2019, Pay Our Interns researchers conducted an online search for photographs, social backgrounds and past employment data of all interns. We obtained data from a variety of sources, including Linkedin, Facebook and Twitter. We collected racial demographic data for 96% of Senate interns and 95% of House interns.</p><img src="https://counter.theconversation.com/content/153830/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James R. Jones consults to Pay Our Interns. </span></em></p>Students of color are largely missing out on paid internships working for lawmakers on Capitol Hill, new research has found.James R. Jones, Assistant Professor of African American and African Studies, Rutgers University - NewarkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1537302021-02-04T16:04:46Z2021-02-04T16:04:46ZConflating morality and the law does South Africa’s governing party no good<figure><img src="https://images.theconversation.com/files/381978/original/file-20210202-17-qidyfy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Supporters of Ace Magashule, the secretary general of the ANC, protest outside the court where he appeared on corruption charges. </span> <span class="attribution"><span class="source">EFE-EPA/Conrad Bornman</span></span></figcaption></figure><p>Since the African National Congress (ANC) came to power in South Africa in 1994, it has been dogged by <a href="https://theconversation.com/why-corruption-in-south-africa-isnt-simply-about-zuma-and-the-guptas-113056">corruption</a> and <a href="https://doi.org/10.1093/afraf/adt069">abuse of power</a>.</p>
<p>These <a href="https://www.gov.za/address-deputy-president-kgalema-motlanthe-south-african-student-congress%E2%80%99-walter-sisulu-memorial">“sins of incumbency”</a> – the seduction of politicians and public officials by power and their abuse of it for their own ends – became endemic during former president Jacob Zuma’s term (<a href="http://www.thepresidency.gov.za/profiles/president-jacob-zuma-0">May 2009 to February 2018</a>). </p>
<p>The details coming out of the Zondo commission of inquiry into <a href="https://www.statecapture.org.za/">state capture</a> have shown how deeply this has taken root. Can the governing party dig it out?</p>
<p>The ANC passed a resolution on how to deal with dishonesty in its ranks at its <a href="https://www.polity.org.za/article/54th-national-conference-report-and-resolutions-2018-03-26">54th national conference</a> in December 2017.</p>
<p>It resolved that any of its cadres “accused of, or reported to be involved in, corrupt practices are to account to the Integrity Committee immediately or face disciplinary processes”. </p>
<p>It added that those</p>
<blockquote>
<p>who fail to give an acceptable explanation or to voluntarily step down while they face disciplinary, investigative or prosecutorial procedures were to be summarily suspended.</p>
</blockquote>
<p>The party’s integrity commission was established in 2013 to be the custodian of this moral stance, after a series of scandals that damaged its public image. </p>
<h2>On a path to political morality?</h2>
<p>This, followed by the adoption of the anti-corruption resolution and election of <a href="http://www.thepresidency.gov.za/profiles/president-cyril-ramaphosa%3A-profile">Cyril Ramaphosa</a> as <a href="https://theconversation.com/the-anc-has-a-new-leader-but-south-africa-remains-on-a-political-precipice-89248">president of the ANC</a>, and <a href="https://www.timeslive.co.za/politics/2018-02-15-cyril-ramaphosa-has-been-elected-president-of-south-africa/">of the country</a>, created optimism that, finally, the party was set to mend its ways.</p>
<p>That was easier said than done. </p>
<p>Three years later, the resolution is embroiled in controversies, pitting the ANC’s factions against each other. The biggest test came last November, when the party’s secretary general, Ace Magashule, was charged with corruption and <a href="https://www.news24.com/news24/newsletters/comments/mostcommented/never-have-i-done-any-corruption-ace-magashule-insists-he-is-innocent-of-charges-20201114">appeared in court</a>. </p>
<p>He defied the integrity commission’s <a href="https://www.sowetanlive.co.za/news/south-africa/2020-12-15-step-aside-anc-integrity-commission-tells-ace-magashule/">call on him to step aside</a>, insisting that only the party’s branches could <a href="https://www.enca.com/news/magasule-only-anc-branches-can-tell-me-step-aside">make that demand</a>.</p>
<p>His loyalists pushed back against the resolution while those aligned to Ramaphosa supported it. The matter became embroiled in legalistic arguments about whether his stepping aside <a href="https://www.news24.com/news24/southafrica/news/ace-steps-aside-or-gets-pushed-new-legal-opinion-demands-anc-must-act-against-him-20201202">would be just</a> and in keeping with the ANC’s constitution, and that of the country, <a href="https://www.iol.co.za/dailynews/news/exclusive-leaked-legal-opinion-states-it-is-unconstitutional-for-ace-magashule-to-step-aside-f42ee890-1d08-4ee6-b79a-c9e427202b89">or not</a>. </p>
<p>But this misses the point in that it conflates morality and the law. It will scupper the resolution, robbing the ANC of a chance to clean up its act. If the distinction between morality and legality is blurred, the resolution could be mired in misconceptions. </p>
<h2>Morality versus the law</h2>
<p>Morality shapes people’s lives, including their thoughts and actions, on the basis of what society generally accepts as right and wrong. It is used to check people’s <a href="https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2828&context=journal_articles">“self-interested, emotional, or sentimental reactions to serious questions of human conduct”</a>. This is what enables people to coexist.</p>
<p>Morality depends on one’s conscience to freely comply with societal expectations.</p>
<p>The law, which the legal scholar Arthur Scheller Jr defines as <a href="http://scholarship.law.marquette.edu/mulr/vol36/iss3/12">“an ordination of reason for the common good”</a>, is a system of rules that prescribe behaviour and is enforceable.</p>
<p>Various formations in society, such as political parties, may have their own laws or rules to regulate the conduct of their members. But such rules should not contradict the supreme law of the land - the constitution - especially in a constitutional democracy founded on the principles of the rule of law. </p>
<p>Morals and laws are not binaries. They complement each other. When the law enhances moral conscience and morality promotes legal consciousness, people can live together harmoniously and ethically. </p>
<p>The confluence of morality and law is what makes for a good society. This is what the ANC fails to grasp. It uses the law to stymie its own resolution, which is basically about the party reclaiming its political morality. </p>
<p>Instead of those who run foul of the resolution stepping aside, contrasting legal opinions are sought. They don’t provide clarity; they cloud a resolution that has all along been clear.</p>
<p>As the American sociologist Robert MacIver once <a href="https://www.jstor.org/stable/pdf/2249546.pdf?refreqid=excelsior%3Af9813a7f3af0eddd4d1954c109924039">said</a>, </p>
<blockquote>
<p>to turn all moral obligations into legal obligations would be to destroy morality.</p>
</blockquote>
<h2>Innocent till proven guilty</h2>
<p>Subjecting the ANC’s “step-aside” resolution to legal interpretation ignores the context that gave rise to it, and its aim of restoring morality within the party. That is imperative if the ANC is to regain trust in society and win votes.</p>
<p>Sticking to the legal principle that one is innocent until proven guilty, just to keep those who flout the resolution in office, misses the point. </p>
<p>The guilt or innocence of a person is a function of a juridical process or law. That they should step aside is a moral stance. It is also for this reason that the party established its integrity commission, whose mandate is to </p>
<blockquote>
<p>protect the image of the organisation and enhance its standing in society by ensuring, among others, that urgent action is taken to deal with public officials, leaders and members of the ANC who face damaging allegations of improper conduct.</p>
</blockquote>
<p>The commission cannot pronounce on the guilt or blamelessness of a person, but on political morality – a function of moral conscience and consciousness. Unfortunately, it is becoming difficult for some in the ANC to appreciate this. Indeed, as the American political activist Upton Sinclair once <a href="https://www.amazon.com/Search-Government-Effiency-Hubris-Helplessness/dp/007554900X">said</a>:</p>
<blockquote>
<p>it is difficult to get a man to understand something when his salary depends upon his not understanding it. </p>
</blockquote>
<h2>Way forward</h2>
<p>The conflation of morality with legality has obfuscated a resolution that led many corruption-weary South Africans to believe that the ANC, which fancies itself <a href="https://theconversation.com/the-anc-insists-its-still-a-political-vanguard-this-is-what-ails-democracy-in-south-africa-141938">“the leader of society”</a>, was set on a new path of moral political rectitude. </p>
<p>Building organisational integrity requires that party leaders be guided by their moral conscience. These should shape the party’s moral disposition in line with its values and principles to achieve its purpose, which has always been about the common good. </p>
<p>Changing the party’s rules to make the integrity commission’s recommendations binding is not going to make party leaders and members internalise morality. What the ANC needs is genuine commitment to institutionalise ethical leadership among all in its ranks.</p><img src="https://counter.theconversation.com/content/153730/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mashupye Herbert Maserumule receives funding from the National Research Foundation for his postgraduate studies. He is affiliated with the South African Association of Public Administration and Management(SAAPAM), and also serves as the Chief of its scholarly publication- Journal of Public Administration. </span></em></p>Morals and laws are not binaries. They complement each other to enable harmonious coexistence.Mashupye Herbert Maserumule, Professor of Public Affairs, Tshwane University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1443872021-01-11T13:18:43Z2021-01-11T13:18:43ZCOVID-19 response shows how an informal rule of law plays a supporting role in society<figure><img src="https://images.theconversation.com/files/377411/original/file-20210106-23-1dkp32.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3575%2C2197&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Waiting their turn, while masked and keeping a distance.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/long-line-of-shoppers-waiting-to-get-into-grocery-store-news-photo/1220163832?adppopup=true">Lindsey Nicholson/Education Images/Universal Images Group via Getty Images</a></span></figcaption></figure><p>Through much of the last year, COVID-19 has propelled many people to accept and follow new patterns of behavior. These include wearing a mask in public, attempting to socially distance and restricting groups to smaller numbers.</p>
<p>Developed in what critics say was an <a href="https://www.politico.com/states/california/story/2020/03/11/coronavirus-local-leadersfederal-direction-1266348">absence of strong national leadership</a>, these behaviors have been policed, by and large, by people themselves – <a href="https://www.usatoday.com/story/news/politics/2020/09/16/covid-19-face-mask-mandates-go-unenforced-police-under-pressure/5714736002/">fines and other punishments are seldom enforced</a> <a href="https://www.nbcboston.com/investigations/few-in-mass-face-fines-for-ignoring-mask-order/2240761/">at an official level</a>. Instead, nonobservance is greeted by the <a href="https://theconversation.com/how-to-talk-to-someone-who-doesnt-wear-a-mask-and-actually-change-their-mind-143995">disapproval and occasional anger</a> of others.</p>
<p>While we wait for vaccines to provide more lasting protection, these decentralized social norms have <a href="https://doi.org/10.5588/ijtld.20.0244">helped our collective safety</a>. But an interesting question arises: How important are informal rules in keeping us safe, and why do people alter their behavior to follow norms when they don’t expect disobedience to be punished by authorities?</p>
<p>As <a href="https://www.umass.edu/jne/member/david-mednicoff">a social scientist and lawyer</a>, I believe the answer lies in an understudied aspect of law and society: the informal rule of law. By informal rule of law, I mean behavioral norms that evolve through the actions of people or institutions and don’t have legal force. Such norms may be written down, but they aren’t usually enforced by governments.</p>
<h2>Common codes</h2>
<p>As the response to the COVID-19 pandemic illustrates, most people seek to <a href="https://doi.org/10.1257/aer.100.3.641">adhere to common codes of behavior</a> that they see as <a href="https://www.bbc.com/future/article/20200220-could-we-live-in-a-world-without-rules">fair and generally in everyone’s best interest</a>. This includes how we wait in lines or many aspects of how we speak with each other. These norms don’t generally depend on the threat of state law enforcement to be pervasive or meaningful.</p>
<p>Since the pandemic hit the U.S. last March, in my area of western Massachusetts, individuals and businesses have put into place patterns of expected social behavior markedly different from what was present earlier. </p>
<p>Because of this, most people I see wear face masks, stay at least six feet away from others and wait in orderly lines to enter and move through stores and other public places. This chimes with national surveys that show that, as 2020 passed, an <a href="https://www.pewresearch.org/fact-tank/2020/08/27/more-americans-say-they-are-regularly-wearing-masks-in-stores-and-other-businesses/">increasing number of Americans</a> adhered to patterns of behavior such as mask-wearing in stores.</p>
<p>The key is that such rules emerged somewhat organically through civil society. There has been limited action at a federal level, and while state mandates have been issued – <a href="https://www.cnn.com/2020/11/17/us/coronavirus-midwest-northern-governors/index.html">in some cases reluctantly</a> – often it was left largely to people themselves to govern their own response, especially in the early stages. An analysis by the European think tank Bruegel found that in many instances <a href="https://www.bruegel.org/2020/04/social-distancing-did-individuals-act-before-governments/">social distancing occurred before government intervention</a>. “In the absence of government action, if individuals are informed about risk, they seem to choose to engage in social distancing,” researchers concluded.</p>
<p>Granted, the informality of such rules has led to <a href="https://www.bbc.com/news/world-us-canada-53477121">public disagreements, even arguments</a>, and local authorities have stepped in to underscore social distancing rules. But often, this happened only after the rules themselves emerged.</p>
<p>In short, the pandemic demonstrated the evolution of an informal rule of law that initially was promulgated, contested and enforced mostly independently of American governments, courts and police. </p>
<p>The <a href="https://www.inet.econ.cam.ac.uk/working-paper-pdfs/wp2008.pdf">speed at which the informal rule of law</a> was accepted by many with respect to COVID-19 should remind us that human societies are capable of self-regulation to a fairly effective extent. My local area, and many others, pushed back the pandemic during the first wave mostly by the rapid spread of rules of behavior that required self-sacrifice but served the public interest. As <a href="http://www.econ.cam.ac.uk/people/faculty/fmot2">Cambridge economic epidemiologist Flavio Toxvaerd</a> recently noted in a <a href="https://www.inet.econ.cam.ac.uk/working-paper-pdfs/wp2008.pdf">study on the impact of behavior on disease</a>: “Spontaneous, uncoordinated social distancing…acts to flatten the curve of the epidemic by reducing peak prevalence.”</p>
<p>Being part of the informal rule of law can be uplifting. Indeed, the feeling of <a href="https://theconversation.com/why-doing-good-can-do-you-good-59106">satisfaction that people I know have voiced in making a difference</a> in preserving lives by adhering to social distancing norms is at least a small piece of agency against the terrible traumas and death toll the pandemic has wrought.</p>
<h2>Supporting role</h2>
<p>Yet the informal rule of law has its limits. These are also clear in a wide-reaching crisis like COVID-19. First, enforcing informal rules is challenging, as many know from the discomfort we experience in trying to get others to wear masks. Important political thinkers have <a href="https://plato.stanford.edu/entries/locke-political/#LockPuni">argued for centuries</a> that one big reason that people need government is to adjudicate critical rules effectively and unbiasedly, and punish important violations. The informal rule of law during the pandemic has helped reduce the spread of cases. But research has shown that <a href="https://doi.org/10.1377/hlthaff.2020.00818">mandates could be more effective</a>. And institutions of enforcement still seem needed when people truly diverge on informal legal behavior, as we have seen in some areas with large COVID-19 outbreaks in the U.S.</p>
<p>More significantly, a major crisis like the pandemic is too widespread and complex to be regulated fully through local and consensual informal rule of law. Many aspects of fighting the pandemic far exceed what can be achieved by ordinary people or communities. It requires data on cases, research on the disease and how to combat it, the distribution of critical supplies and the accumulation of expert knowledge.</p>
<p>Because key aspects of the COVID-19 pandemic depend on such larger-scale action and expertise, the role of the informal rule of law works best alongside formal actions of leaders and institutions.</p>
<p>Nonetheless, the supporting role of the informal rule of law merits attention. With so many large challenges facing the U.S. and the world today, it is easy for people to feel powerless and passive. Yet, as a collection of small societies and often generous individuals, people in the part of Massachusetts where I live, and in many diverse places, have managed to put together new ways of interacting and behaving that may not be particularly gratifying. They have still saved countless lives.</p>
<p>[<em>Get facts about coronavirus and the latest research.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=coronavirus-facts">Sign up for The Conversation’s newsletter.</a>]</p><img src="https://counter.theconversation.com/content/144387/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Mednicoff does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A social scientist argues that in the absence of strong government action, people took it upon themselves to work out conduct to stem the spread of virus.David Mednicoff, Chair, Department of Judaic and Near Eastern Studies, and Associate Professor of Middle Eastern Studies and Public Policy, UMass AmherstLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1501382020-11-23T19:56:28Z2020-11-23T19:56:28ZWhy nursing home aides exposed to COVID-19 aren’t taking sick leave<figure><img src="https://images.theconversation.com/files/370158/original/file-20201118-23-1olawc0.jpg?ixlib=rb-1.1.0&rect=18%2C27%2C6020%2C3983&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Nursing home aides have protested working conditions that can push them to work while sick.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/employees-a-parker-jewish-institute-for-health-care-and-news-photo/1253092062">Alejandra Villa Loarca/Newsday via Getty Images</a></span></figcaption></figure><p>The COVID-19 pandemic has devastated America’s nursing homes, but the reasons aren’t as simple as people might think.</p>
<p>To understand how nursing homes became the source of <a href="https://www.kff.org/health-costs/issue-brief/state-data-and-policy-actions-to-address-coronavirus/#long-term-care-cases-deaths">over one-third</a> of U.S. COVID-19 deaths, you have to look beyond just the vulnerability of the residents and examine how nursing homes pay and manage their employees.</p>
<p>The average nursing aide <a href="https://www.bls.gov/ooh/healthcare/nursing-assistants.htm">earns just $14.25 an hour</a>, less than $30,000 a year. Many are women who work at multiple nursing homes to make ends meet. Partly as a result of that, the typical nursing home has <a href="http://doi.org/10.3386/w27608">staff connections to 15 other facilities</a> – each an opportunity for the coronavirus to spread. That risk is magnified by a reluctance among many nursing aides to take sick days when they are ill, even though federal law currently requires employers to provide paid sick leave for coronavirus-related reasons.</p>
<p>An alarming number of infections in long-term care facilities – <a href="http://doi.org/10.3386/w27608">nearly half</a> – have been traced to staff who work in multiple health care facilities and who engage in “presenteeism,” meaning they continue to work even after being exposed to or falling ill from COVID-19.</p>
<p>As law professors who specialize in <a href="https://law.arizona.edu/shefali-milczarek-desai">employment, immigration</a> and <a href="https://law.arizona.edu/tara-sklar">health law</a>, we have spoken with many nursing home aides to try to understand why this is happening and find ways to avoid it. The story of one of them represents what many others have experienced. We’ll call her Salma rather than use her real name to protect her from retaliation. </p>
<p>Like <a href="http://doi.org/10.1377/hlthaff.2018.05514">about a third of nursing aides</a>, Salma is an immigrant. She often spends 12 hours a day cooking, cleaning and caring for residents’ most intimate needs, such as bathing, dressing, feeding and providing medication.</p>
<p>When Salma fell ill earlier this year, she requested paid sick leave, but her employer refused to provide it. She tried to assert her rights under her state’s paid sick time law, but she said her employer responded by threatening to report her to immigration authorities. When she explained that she had legal status, Salma said, her employer changed tactics and threatened to report her to the Internal Revenue Service because no payroll taxes had been deducted from her wages, as she was paid off the books. Salma was afraid she would lose her job, so she continued to go to work.</p>
<p><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3733990">Our research</a>, drawing on interviews with nursing aides like Salma and <a href="https://doi.org/10.1093/jlb/lsaa036">emerging studies</a> of other <a href="https://www.umass.edu/lrrc/research/working-papers-series/survey-essential-workers%E2%80%99-safety-and-security-during-covid-19">essential workers during COVID-19</a>, shows how <a href="http://dx.doi.org/10.2139/ssrn.3675866">employee policies</a>, particularly for low-paid aides, have sharply raised the risks, and how access to paid sick leave could lower them.</p>
<h2>A long-running problem</h2>
<p><a href="https://www.texashealthinstitute.org/uploads/1/3/5/3/13535548/thi_pandemic_influenza__equity_report_2012.pdf">Historical records</a> from previous outbreaks in the U.S., including the 1918 influenza pandemic and the 2009 H1N1 epidemic, show that immigrants and people of color are more likely to contract and die of infectious diseases. While preexisting conditions account for the severity of illness, they do not explain why these segments of the population are more likely to become sick in the first place. </p>
<p><a href="https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-ethnicity.html">Data show</a> this is due to large percentages of immigrants and people of color performing essential labor, such as nursing aide roles, that requires close contact with many other people. </p>
<figure class="align-center ">
<img alt="An assisted care facility staff member checks a resident's temperature" src="https://images.theconversation.com/files/370631/original/file-20201122-21-ulgrno.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/370631/original/file-20201122-21-ulgrno.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/370631/original/file-20201122-21-ulgrno.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/370631/original/file-20201122-21-ulgrno.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/370631/original/file-20201122-21-ulgrno.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/370631/original/file-20201122-21-ulgrno.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/370631/original/file-20201122-21-ulgrno.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In assisted care facilities and nursing homes, residents are often in contact with many staff members and one another.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/resident-has-his-temperature-checked-in-his-room-at-an-news-photo/1228785162">Craig F. Walker/The Boston Globe via Getty Image</a></span>
</figcaption>
</figure>
<p>Our research asks why nursing aides are more likely to spread the virus. To answer this question, we examined laws and policies that affect them, including paid sick time.</p>
<p>San Francisco became the first U.S. jurisdiction to require paid sick leave in <a href="https://sfgov.org/olse/PAID-SICK-LEAVE-ORDINANCE-PSLO">2006</a>. Other cities, counties and states followed, and now there are approximately <a href="https://www.abetterbalance.org/paid-sick-time-laws/?export">40 of these laws</a> nationwide. </p>
<p>Paid sick leave laws require employers to pay workers who take time off when they or any family members are sick, injured or seeking medical treatment. <a href="https://www.azica.gov/sites/default/files/media/070317%20FAQ%20Updates.pdf">Some laws</a> explicitly allow for paid sick leave during a public health emergency, such as COVID-19. Most are based on an accrual model. This means employees must earn paid sick time hours; typically one hour of paid sick leave is earned for every 30 hours worked. Local paid sick time laws apply to private-sector employees and, in some cases, state and local government employees. </p>
<p>In March 2020, Congress passed the nation’s first <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave">universal paid sick leave law</a>. This emergency law, which expires at the end of the year, provides most employees in the country with up to 80 hours of paid leave if the worker has been exposed to, is ill from, or is caring for someone infected with COVID-19.</p>
<p>However, a <a href="https://www.umass.edu/lrrc/research/working-papers-series/survey-essential-workers%E2%80%99-safety-and-security-during-covid-19">large survey</a> earlier this year showed that many essential, low-wage employees still could not access paid sick leave after the law went into effect. That survey and our research show that these employees tend to either believe they have no right to paid leave or that their employer will retaliate if they try to use it. Many fear they could lose their jobs. </p>
<p>Even a short period of lost income can be financially devastating for these individuals. <a href="https://www.umass.edu/lrrc/research/working-papers-series/survey-essential-workers%E2%80%99-safety-and-security-during-covid-19">Among Latina essential workers</a>, 43% surveyed said that even while employed they didn’t earn enough to adequately provide food for their families.</p>
<p><iframe id="m4oUr" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/m4oUr/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>How to make sick leave work as intended</h2>
<p>So, can paid sick leave laws be made more accessible for essential workers like Salma? </p>
<p>Our research highlights both the inadequacies of existing laws and policies and what might be done to strengthen them.</p>
<p>[<em>Research into coronavirus and other news from science</em> <a href="https://theconversation.com/us/newsletters/science-editors-picks-71/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=science-corona-research">Subscribe to The Conversation’s new science newsletter</a>.]</p>
<p>First, nearly all paid sick leave law violations require federal or state labor agency intervention or the employee loses out. These agencies, however, often <a href="https://www.nelp.org/publication/building-robust-labor-standards-enforcement-regimes-in-our-cities-and-counties/">lack adequate resources</a> to investigate potential employer violations and hold employers accountable if they retaliate against workers. </p>
<p>Second, most of these agencies are highly centralized and do not conduct effective outreach to immigrant communities, so both employers and employees are often unaware of paid sick leave laws. A handful of states and local governments offer <a href="https://www.epi.org/publication/state-ag-labor-rights-activities-2018-to-2020/">pioneering examples</a>. Massachusetts, for example, posted guidance online in multiple languages about sick leave and other workers’ issues. Washington, D.C., conducted tele-town halls with strategies to help workers and employers understand their respective paid sick time rights and obligations during the pandemic.</p>
<p>An approach that both empowers employees while informing employers about the benefits of paying employees to stay at home when sick can help save lives.</p><img src="https://counter.theconversation.com/content/150138/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Over one-third of America’s COVID-19 deaths have been nursing home residents. Employee policies, particularly for low-paid aides, have sharply raised the risk.Shefali Milczarek-Desai, Assistant Clinical Professor of Law and Director of the Immigrant Workers' Rights Clinic, UA James E. Rogers College of Law, University of ArizonaTara Sklar, Professor of Health Law and Director, Health Law & Policy Program, University of ArizonaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1418542020-07-06T14:32:29Z2020-07-06T14:32:29ZHow countries get away with hoarding drugs in a pandemic<p>The news that the US has bought the global supply of remdesivir – a drug that can treat COVID-19 – has rightly been criticised as <a href="https://theconversation.com/coronavirus-it-is-morally-indefensible-for-a-nation-to-keep-life-saving-drugs-for-itself-141734">“treatment nationalism”</a>. But the US is not the only country acting selfishly. The UK recently <a href="https://www.gov.uk/government/publications/medicines-that-cannot-be-parallel-exported-from-the-uk">banned the export</a> of dexamethasone – the only drug proven to reduce deaths in people severely ill with COVID.</p>
<p>Treatment nationalism is not a new phenomenon. During the 2009 swine flu pandemic, wealthy countries dominated the procurement of the swine flu vaccine. Developing countries <a href="https://www.tandfonline.com/doi/abs/10.1080/17441692.2015.1043743">only got access to the vaccine</a> much later on in the pandemic (when the vaccine would have been less effective) and in much smaller doses. </p>
<p>This is poor public health and it is poor multilateralism. It is morally wrong to think that someone has a stronger claim to a vaccine because they live in a rich country. </p>
<h2>Can it be prevented?</h2>
<p>There is a range of measures governments could take to dominate the supply of a drug or vaccine during a pandemic. The first is simple market domination. This is the case with remdesivir and the US. Because of intellectual property rights, remdesivir can only be manufactured by Gilead, an American company. And the US has contracted with Gilead to purchase <a href="https://www.bbc.co.uk/news/world-us-canada-53254487">nearly all of its supply</a>. So far, so free market. </p>
<p>However, there are some options to overcome this. Patents can, and should, be circumvented during a pandemic. Tools like <a href="https://medicineslawandpolicy.org/2020/03/covid-19-and-the-come-back-of-compulsory-licensing/">compulsory licencing</a> can give permission to generic drug manufacturers to make a patented drug. </p>
<p>Providing generic manufacturers can access the raw ingredients contained within remdesivir they can easily manufacture and licence a generic version of the drug. They can do so for significantly <a href="https://edition.cnn.com/2020/06/29/health/remdesivir-cost-coronavirus-treatment-bn/index.html">less than the US$2,340</a> (£1,878) Gilead is charging for each patient. </p>
<p>There are other legal options in the area of “treatment nationalism”, too. The UK has placed dexamethasone on its <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/892354/Medicines_that_cannot_be_parallel_exported_from_the_UK_15_June_2020.csv/preview">export ban list</a>, meaning that any drug wholesaler attempting to export this drug to other countries could <a href="http://www.legislation.gov.uk/uksi/2012/1916/regulation/43/made">lose their licence</a>. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/345519/original/file-20200703-33913-1swk6pn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/345519/original/file-20200703-33913-1swk6pn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/345519/original/file-20200703-33913-1swk6pn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/345519/original/file-20200703-33913-1swk6pn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/345519/original/file-20200703-33913-1swk6pn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/345519/original/file-20200703-33913-1swk6pn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/345519/original/file-20200703-33913-1swk6pn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Barack Obama being immunised against swine flu in 2009.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/w/index.php?curid=8804161">Pete Souza/Wikimedia Commons</a></span>
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<p>Other options could include government indemnification of drug or vaccine manufacturers for failure to perform contractual obligations, so that even if the manufacturer has contracted to supply drugs or vaccines to other countries, the government will prevent them from being sued for breach of contract if they fail to fulfil the order. </p>
<p>A more extreme measure would be compulsory requisition of drugs or vaccines that are due to be exported to another country. In the UK, the Civil Contingencies Act 2004 makes provision that a “senior Minister of the Crown” may make emergency regulations, including confiscating private property with or without compensation. </p>
<p>While we have not seen this in a pandemic, there is an established history of private assets and land being seized in an emergency, including in the UK. It hasn’t happened yet, but it could.</p>
<h2>Vaccines</h2>
<p>To return to vaccines, earlier I explained that compulsory licensing allows generic drug manufacturers to make a patented drug, to ensure access. This is not the case with vaccines. The vaccine market is <a href="https://vaxmap.org">dominated</a> by a handful of manufacturers operating in a few countries. There is no generic competition. </p>
<p>A vaccine is key to the COVID-19 global response strategy. However, it is not yet clear how any COVID-19 vaccine will or ought to be distributed, despite significant issues of fairness, equity and justice. Developing countries may not have access to a COVID-19 vaccine without a governance framework guiding international allocation. </p>
<p>During the 2009 swine flu pandemic, this was certainly the case. However, the WHO relies on donations from wealthy countries with excess vaccine to supply developing countries. These donations came too late, and only once wealthy countries were satisfied they had <a href="https://www.tandfonline.com/doi/abs/10.1080/17441692.2015.1043743">enough vaccine to meet their own needs</a>. </p>
<p>Given the severity of COVID-19, wealthy countries may be even less likely to donate vaccine to their poor neighbours and could use a range of legal tools to prevent this from happening. </p>
<p>Our <a href="https://www.keele.ac.uk/law/research/researchclusters/internationalandeuropeanlaw/assessingtheviabilityofaccessandbenefit-sharingmodels/">new research project</a> aims to assess the viability of international access and benefit-sharing models to determine what lessons can be applied to the distribution of COVID-19 vaccines overcome these legal barriers.</p><img src="https://counter.theconversation.com/content/141854/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>This research was supported by a grant from the Arts and Humanities Research Council on "Assessing the viability of access and benefit-sharing models of equitable distribution of vaccines in international law" </span></em></p>The US has bought up most of the world’s supply of remdesivir. This type of treatment nationalism is nothing new, though.Mark Eccleston-Turner, Lecturer of Law, Global Health, Keele UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1392752020-05-29T12:27:23Z2020-05-29T12:27:23ZAhmaud Arbery’s killing puts a spotlight on the blurred blue line of citizen’s arrest laws<figure><img src="https://images.theconversation.com/files/338078/original/file-20200527-20233-pchabc.jpg?ixlib=rb-1.1.0&rect=2%2C5%2C1994%2C1326&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Gregory and Travis McMichael who killed Ahmaud Arbery during an attempted citizen's arrest.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Georgia-Chase-Deadly-Shooting/afcaada526b342b8b997f36a194553da/73/0">Glynn County Detention Center via AP</a></span></figcaption></figure><p>The killing of an <a href="https://gbi.georgia.gov/press-releases/2020-05-21/ahmaud-arbery-murder-investigation">unarmed black jogger by white residents</a> who <a href="https://www.thecut.com/2020/05/ahmaud-arbery-shooting-georgia-explainer.html">assumed he was up to no good</a> is shocking, but it should come as no surprise.</p>
<p>If anything, Ahmaud Arbery’s death in Georgia on Feb. 23 was predictable: the latest tragic example of the fatal consequences that can occur when private citizens seek to take the law into their own hands.</p>
<p>As a <a href="https://sc.edu/study/colleges_schools/law/faculty_and_staff/directory/stoughton_seth.php">law professor and former police officer</a>, what concerns me is not just that the men who killed Arbery may have thought that their attempted apprehension was legally sanctioned, but that they they would have had good reason to believe that. Most states still retain <a href="https://www.nytimes.com/article/ahmaud-arbery-citizen-arrest-law-georgia.html">outdated laws that protect would-be vigilantes</a>.</p>
<h2>‘Vigilant snorers’</h2>
<p>So-called “citizen’s arrest” laws, which allow private individuals to apprehend an alleged wrongdoer, have been around for centuries. Such laws protect people from civil or criminal liability in the event they “arrest” someone. </p>
<p>In theory, that makes sense. Public safety is everyone’s responsibility, after all. In practice, however, citizen’s arrest doctrines have set the stage for tragic, unnecessary and avoidable confrontations and deaths.</p>
<p>Modern citizen’s arrest rules can be traced back to 1285, when England’s <a href="https://thehistoryofengland.co.uk/resource/statute-of-winchester-1285/">Statute of Winchester</a> directed that citizens “not spare any nor conceal any felonies” and commanded that citizens bring “fresh suit” – prosecute – whenever they see “robberies and felonies committed.” </p>
<p>Back then, there was no “law enforcement” as we understand it today – no cops, no prosecutors. It was largely left to private citizens to apprehend and prosecute felons. </p>
<p>Prior to the <a href="https://time.com/4779112/police-history-origins/">development of professionalized police agencies</a> in the mid- to late-1800s, there was no particular legal distinction between arrests made by private citizens and those made by public officials.</p>
<p>In English cities and larger towns, able-bodied men were expected to take generally unpaid shifts patrolling as night watchmen. Watchmen were often conscripted, and citizens of means could hire someone to serve on their behalf, resulting in a dubious dedication to duty. </p>
<p>This practice extended beyond England to its colonies. An account <a href="https://smile.amazon.com/New-York-Eighteenth-Century-Municipality/dp/1273537610/ref=sr_1_3?dchild=1&keywords=New+York+as+an+Eighteenth+Century+Municipality&qid=1590584807&sr=8-3">published in</a> the New York Gazette in the mid-18th century described night watchmen as “a parcel of idle, drinking, vigilant Snorers, who never quelled any nocturnal Tumult in their Lives.”</p>
<p>In the mid-1600s, the slave codes of the colonial American South declared that controlling the enslaved population was a matter of public responsibility – the “public” here being exclusively white men. Paid and volunteer militiamen were tasked with, as the author Kristian Williams has noted, “<a href="https://smile.amazon.com/Our-Enemies-Blue-Kristian-2007-08-27/dp/B01N9N01BR/ref=sr_1_1?dchild=1&keywords=KRISTIAN+WILLIAMS%2C+OUR+ENEMIES+IN+BLUE%3A+POLICE+AND+POWER+IN+AMERICA+27+%282007%29.&qid=1590584988&sr=8-1">making regular patrols to catch runaways, prevent slave gatherings, search slave quarters … and generally intimidate the black population</a>.”</p>
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<img alt="" src="https://images.theconversation.com/files/338040/original/file-20200527-20255-104kbvf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/338040/original/file-20200527-20255-104kbvf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/338040/original/file-20200527-20255-104kbvf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/338040/original/file-20200527-20255-104kbvf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/338040/original/file-20200527-20255-104kbvf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/338040/original/file-20200527-20255-104kbvf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/338040/original/file-20200527-20255-104kbvf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A patrolman looking over the passes of plantation slaves.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-plantation-police-look-over-the-passes-of-a-few-negro-news-photo/615294610?adppopup=true">Corbis via Getty Images</a></span>
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<p>These militiamen did little or nothing to address crime by whites, especially crimes against enslaved or free blacks.</p>
<h2>Shopkeepers and security</h2>
<p>Today more than 18,000 local, state and federal agencies provide police services in the U.S. But citizen’s arrest lives on in the form of <a href="https://www.ncjrs.gov/App/abstractdb/AbstractDBDetails.aspx?id=44479">a patchwork of statutes and common law doctrines</a>. </p>
<p>Most states have “<a href="https://cbr.cba.org/index.php/cbr/article/view/4559">shopkeeper’s privilege</a>” laws that provide a defense for business owners and employees <a href="https://scholar.google.com/scholar_case?case=17159519265033714409">who arrest someone for theft</a> so long as they have probable cause. Resisting such an arrest <a href="http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&URL=0800-0899/0812/Sections/0812.015.html">is a crime</a> in some states. Private security guards, similarly, may be <a href="https://www.scstatehouse.gov/code/t40c018.php">authorized to make arrests</a>, at least on the property they are hired to protect. And when bounty hunters capture someone who has jumped bail, <a href="https://scholar.google.com/scholar_case?case=2434794054734165793&q=%22is+likened+to+the+rearrest+by+the+sheriff+of+an+escaping+prisoner%22&hl=en&as_sdt=6,34">the Supreme Court has said</a> the arrest “is likened to the rearrest by the sheriff of an escaping prisoner.”</p>
<p>Those who are not a shopkeeper, security guard or bounty hunter may still be able to effect an arrest under more generic citizen’s arrest rules.</p>
<p>In many states, for example, an officer can make arrests for offenses classified as misdemeanors – minor crimes typically punishable by up to a year in jail – but a private citizen cannot. In other states, <a href="https://law.justia.com/codes/georgia/2010/title-17/chapter-4/article-4/17-4-60/">including Georgia</a>, a private citizen may make an arrest only if they witness or have firsthand knowledge of an offense. And in some states, an individual may only be able to invoke “citizen’s arrest” as a defense to civil or criminal liability if the person they arrested <a href="https://scholar.google.com/scholar_case?case=14000891240972281863&q=Commonwealth++v.Lussier,++128++N.E.2d++569++(Mass.++1955)&hl=en&as_sdt=6,34">actually committed an offense</a>, while officers are protected if they had probable cause.</p>
<p>But in some ways, private actors have even more leeway to make arrests and use force than law officers because the constitutional rules that regulate searches, seizures, and interrogations <a href="https://scholar.google.com/scholar_case?case=11486599334992839241&q=428+U.S.+433+janis&hl=en&as_sdt=6,34">do not apply</a> when “a private party … commits the offending act.” </p>
<p>Citizens may have more authority to use force than law officers, too, depending on state law. </p>
<p>In <a href="https://www.scstatehouse.gov/code/t17c030.php">South Carolina</a>, a citizen can use deadly force to effect the nighttime arrest of someone who has US$1 of stolen property in their possession or who “flees when he is hailed” if the circumstances “raise just suspicion of his design to steal.” </p>
<p>If an officer in South Carolina did the same, he would likely run afoul of state law or the Fourth Amendment, which the Supreme Court has held requires probable cause “that the suspect poses a significant threat of death or serious physical injury.”</p>
<h2>Race and status</h2>
<p>No one knows how many citizen’s arrests occur in the U.S. every year because the police are usually called and an officer processes the arrest, leaving little evidence of private involvement.</p>
<p>We do know, however, that private arrest authority is too often <a href="https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1435&context=cjlpp">badly misused</a> by <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/jgrj11&div=18">those who believe their higher social status</a> gives them authority over someone they perceive as having lower status. Frequently, this <a href="https://historynewsnetwork.org/article/175619">falls along racial lines</a>, as seen in the <a href="https://www.washingtonpost.com/outlook/2019/05/07/what-is-citizens-arrest-why-is-practice-still-use/">detention of immigrants by militias at the U.S. border</a>, the attitude of <a href="https://www.washingtonpost.com/opinions/in-gated-communities-such-as-where-trayvon-martin-died-a-dangerous-mind-set/2012/04/06/gIQAwWG8zS_story.html">nightwatchmen in gated communities</a>, and in situations like the Ahmaud Arbery case.</p>
<p>Gregory and Travis McMichael say they chased Arbery because they believed he was behind neighborhood burglaries. Arbery, of course, had committed no crime. He was just jogging.</p>
<p>And even if he had committed a burglary, the death would have still been the result of an unjustified act of vigilantism. As the <a href="https://scholar.google.com/scholar_case?case=5843997099226288287&q=tennessee+v.+garner&hl=en&as_sdt=6,34">Supreme Court has said</a>, “It is not better that all felony suspects die than that they escape.” Remembering that as the U.S. considers reforming citizen’s arrest statutes may go a long way in preventing any further unnecessary deaths.</p>
<p>[<em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklysmart">You can get our highlights each weekend</a>.]</p><img src="https://counter.theconversation.com/content/139275/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Seth W. Stoughton is a law professor at the University of South Carolina, where he studies policing. A former officer himself, he serves as a police consultant and expert witness in police-related litigation.</span></em></p>Laws enabling citizens to apprehend suspects, which date back to medieval England, were historically used in the US to suppress slave revolts.Seth W. Stoughton, Associate Professor of Law, University of South CarolinaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1357162020-04-08T06:55:29Z2020-04-08T06:55:29ZPandemic policing needs to be done with the public’s trust, not confusion<p>The law on what we can and can’t do during the coronavirus outbreak is changing on an almost hourly basis. Some of what is written now might be overtaken by the shifts in the pandemic powers of control.</p>
<p>But we need to make sure people have trust in any new powers given to authorities. These need to be clear to all, and applied consistently and transparently, which is not the case at the moment.</p>
<p>For example, over the weekend a <a href="https://7news.com.au/lifestyle/health-wellbeing/vic-driver-fined-over-covid-19-rules-c-958222">Victorian teenager was fined A$1,652</a> for leaving home to go for a driving lesson with her mother. Police said their activities were “non-essential travel”.</p>
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<p>The advice from New South Wales police at that time said such activities <a href="https://www.facebook.com/nswpoliceforce/posts/10157738379496185">were fine in NSW</a>. Victoria police have since <a href="https://www.news.com.au/technology/innovation/motoring/on-the-road/coronavirus-lplater-fined-1600-for-nonessential-travel-in-melbourne/news-story/b8452c26f8852c706dc8fa4218de3812">withdrawn the fine</a>. </p>
<p>But NSW Police Commissioner Mick Fuller <a href="https://www.abc.net.au/radionational/programs/breakfast/it-was-my-idea-nsw-police-commissioner-mick-fuller/12127848">told the ABC’s Fran Kelly</a> that in NSW you cannot travel to your holiday home unless it is “essential”. Victorians are told <a href="https://www.theage.com.au/national/victoria/no-fines-for-easter-holiday-house-trips-but-please-stay-home-20200406-p54hmy.html">they can head to their holiday homes</a> over Easter as long as they otherwise maintain strict quarantining on arrival.</p>
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Read more:
<a href="https://theconversation.com/coronavirus-has-seriously-tested-our-border-security-have-we-learned-from-our-mistakes-134794">Coronavirus has seriously tested our border security. Have we learned from our mistakes?</a>
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<p>These are just two examples in two states of a broader underlying problem that Americans would deem unconstitutionally “<a href="https://dictionary.law.com/Default.aspx?selected=2228">void for vagueness</a>”, a law invalid because it’s not sufficiently clear.</p>
<p>Calls for common sense do little to ease concerns that things are likely to worsen. The broad coronavirus containment and mitigation strategies might continue for many more months.</p>
<h2>Remember the Fitzgerald inquiry</h2>
<p>Perhaps we can learn from the landmark <a href="https://www.ccc.qld.gov.au/about-us/our-history/fitzgerald-inquiry">Fitzgerald inquiry</a> into Queensland policing, more than three decades ago.</p>
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Read more:
<a href="https://theconversation.com/thirty-years-on-the-fitzgerald-inquiry-still-looms-large-over-queensland-politics-119167">Thirty years on, the Fitzgerald Inquiry still looms large over Queensland politics</a>
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<p>The inquiry identified widespread systemic corruption in police, politics and civil society. This inquiry represented a change in police accountability.</p>
<p>There is another, lesser-known or appreciated aspect of the Fitzgerald inquiry. It emphasised that police must have the consent of the community: police have to ensure their practices generate trust that people will be treated fairly and police discretion will be used appropriately.</p>
<p>These are standard issues in the policing scholarship.</p>
<p>Pandemic policing raises many issues that cut to the core of policing by consent. </p>
<p>How policing resources are mobilised and the decision-making processes and practices on the ground are vital. Just look at the confused circumstances of the disembarkation of the <a href="https://www.abc.net.au/news/2020-04-06/coronavirus-cruise-ship-ruby-princess-docks-in-australia-in-nsw/12124398">Ruby Princess cruise ship</a> in Sydney, which has been a key cause of the spread of COVID-19 in NSW and beyond.</p>
<p>The Australian Border Force, NSW health authorities and NSW police were variously blamed, so surely there needs to be a major investigation into network failure and specific responsibilities.</p>
<h2>Police discretion needs to be fair</h2>
<p>Everyday street policing is central to pandemic policing: when do police decide to intervene and ask someone their purpose for being out and about? </p>
<p>Vague legislative provisions are often the source of poor use of discretion by police. But the answer is not to be found in taking away any discretion, the hallmark of “zero-tolerance policing”.</p>
<p>There are many things that might be done, but a few simple ones come to mind.</p>
<p>Any legislation or regulation must be precisely drafted. This has not been happening and is causing confusion. Just look at the level of uncertainty in <a href="https://theconversation.com/can-i-visit-my-boyfriend-my-parents-can-i-go-fishing-or-bushwalking-coronavirus-rules-in-nsw-queensland-and-victoria-explained-135308">NSW, Queensland and Victoria</a>.</p>
<p>We need clearly stated offences, clear lines of reasoning and a clear demarcation between preferred practice or guidance and regulated conduct.</p>
<p>For instance, what does staying in your own “area” for permitted out-of-home travel mean?</p>
<p>A discussion on ABC radio in Melbourne recently descended into callers chastising a man who thought he would like to travel to the beach for exercise well away from his residence. Live on air, he asked Victoria Police Chief Commissioner Graham Ashton if that was okay.</p>
<p>The chief commissioner didn’t say yes or no, he just called for “common sense”. But what would be reasonable and common sense – 1km, 2km, 5km or 10km, etc? Is driving to exercise allowed?</p>
<h2>More than common sense</h2>
<p>Common sense is not the way to ensure police discretion is going to be used appropriately, nor does it give the community confidence in the law. It might only be the odd case here and there at the moment causing confusion or consternation but it is changing daily.</p>
<p>Data on the use of this discretion must be recorded and made publicly available in close to real time. Equally important is the need to have data on policing activities. </p>
<p>Most jurisdictions have a crime statistics agency and these agencies should be given responsibility to collate data to identify who is being stopped, where, for what offence and with what outcomes. Report this every day as we do health data.</p>
<p>It does not need to be data on the final outcome that determines whether the fine is paid or challenged in the courts some months later. But it needs to reflect the immediate policing activities and it needs to be made public and in a timely manner.</p>
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Read more:
<a href="https://theconversation.com/a-matter-of-trust-coronavirus-shows-again-why-we-value-expertise-when-it-comes-to-our-health-134779">A matter of trust: coronavirus shows again why we value expertise when it comes to our health</a>
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<p>As the pandemic continues, and it may get worse, pandemic policing might head in directions the broader population has never experienced.</p>
<p>So 30 years on from Fitzgerald, we need to reinforce the notion that policing by consent, with transparency and accountability, is vital.</p>
<p>If public support is to be maintained over the course of the pandemic we need to make sure we have legal clarity and a detailed understanding of what is being done in the name of the exception. Pandemic policing must have very real limits and robust, real-time accountability.</p><img src="https://counter.theconversation.com/content/135716/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Darren Palmer receives funding from the National Drug Law Enforcement Fund, the Victorian Drug Law Enforcement Fund, the Australian Drug Foundation, VicHealth, the Criminology Research Council, the TAC and the Victorian Law Foundation..</span></em></p>We need any new laws on what we can and can’t do to be clear to all, applied consistently and transparently, which is not the case at the moment.Darren Palmer, Associate professor, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1324442020-02-26T18:54:40Z2020-02-26T18:54:40ZCoercive control is a key part of domestic violence. So why isn’t it a crime across Australia?<figure><img src="https://images.theconversation.com/files/317245/original/file-20200226-24685-1wut7s0.jpg?ixlib=rb-1.1.0&rect=2%2C5%2C995%2C660&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/young-woman-victim-suffering-abuse-harassment-1100198846">Shutterstock</a></span></figcaption></figure><p>The recent <a href="https://www.abc.net.au/news/2020-02-23/hannah-clarke-brisbane-camp-hill-vigil-domestic-violence/11992398">killing</a> of Hannah Clarke and her three children by her estranged husband has raised <a href="https://www.brisbanetimes.com.au/national/queensland/how-to-stop-men-killing-their-wives-and-children-20200220-p542s6.html">national attention</a> to the types of behaviour that might lead to such a horrific crime, and how we might spot it early enough to intervene.</p>
<p>Researchers have <a href="https://theconversation.com/why-do-men-kill-their-families-heres-what-the-research-says-132314">known for decades</a> most family violence involves forms of abuse other than physical violence, such as social isolation, emotional abuse and financial abuse.</p>
<p>However, we are now experiencing a watershed moment where the broader community is starting to recognise that too.</p>
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Read more:
<a href="https://theconversation.com/why-do-men-kill-their-families-heres-what-the-research-says-132314">Why do men kill their families? Here's what the research says</a>
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<p>Evidence is mounting that Hannah’s husband had a <a href="https://www.abc.net.au/news/2020-02-21/brisbane-car-fire-hannah-clarke-rowan-baxter-family-violence/11985024">long history</a> of psychological abuse and controlling behaviours, sometimes called coercive control.</p>
<p>This is something we and others believe should be a crime in all jurisdictions across Australia.</p>
<p>In a nutshell, coercive control is a collection of behaviours designed to strip someone of their sense of autonomy and self-worth. Some examples of these behaviours include removing male contacts from a partner’s social media, dictating where and when their partner sleeps and eats, threats of self-harm if the relationship ends, and physical violence.</p>
<p>Perpetrators are <a href="https://journals.sagepub.com/doi/abs/10.1177/1748895819880947?journalCode=crjb">nearly always male</a>. And research by the UK charity <a href="https://www.safelivesresearch.org.uk/Comms/Psychological%20Violence%20-%20Full%20Report.pdf">SafeLives</a> shows perpetrators can come from all works of life and social demographics.</p>
<h2>If we can predict it, we can prevent it</h2>
<p>There is a recognised timeline of behaviours that tend to occur before one partner (or ex-partner) kills the other.</p>
<p>A <a href="https://journals.sagepub.com/doi/abs/10.1177/1077801219863876?journalCode=vawa">review</a> of 372 intimate partner homicides in the UK found many men who kill their intimate partners (and it is almost always men killing women) followed an <a href="https://www.bbc.com/news/uk-49481998">eight-stage homicide timeline</a>.</p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/lPF_p3ZwLh8?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">The eight stages that tend to lead to one partner killing another.</span></figcaption>
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<p>For instance, the offender tends to have a history of abuse (either against the same or a different victim), the relationship often doesn’t start out as abusive, their behaviour tends to gradually become controlling, there’s a trigger (such as the end of the relationship) and then they escalate and kill their partner. There are clear similarities between the killing of Hannah and her children and this timeline.</p>
<p>Because we can predict these incidents, perhaps <a href="https://www.canberratimes.com.au/story/6640087/qld-car-fire-deaths-were-preventable/?cs=14231">we can prevent them</a>.</p>
<p>Just as importantly, not only is coercive control a warning sign for intimate partner homicide, it is also a wrong in itself. Victims report coercive control is often <a href="https://time.com/5610016/coercive-control-domestic-violence/">worse</a> than all but the most extreme physical violence.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1230060459962884096"}"></div></p>
<h2>It’s time to criminalise coercive control</h2>
<p><a href="https://www.researchgate.net/publication/311453772_Criminalising_emotional_abuse_intimidation_and_economic_abuse_in_the_context_of_family_violence_The_Tasmanian_experience">Tasmania</a> is the only jurisdiction to have made certain coercive controlling behaviours (in particular, economic abuse and emotional abuse) criminal offences in Australia.</p>
<p>But we <a href="https://www.2gb.com/calls-for-controlling-behaviour-to-be-made-illegal/">and</a> <a href="http://www.mygc.com.au/coercive-control-would-be-a-crime-qld-lnp/">others</a> believe coercive control should be a criminal offence in its own right in each state and territory.</p>
<p>Such criminalisation needs to be part of wider reforms to address the <a href="https://aic.gov.au/publications/sr/sr002">unacceptable reality</a> that a current or former partner murders a woman <a href="https://www.ourwatch.org.au/Understanding-Violence/Facts-and-figures">every week</a> in Australia, and <a href="https://www.aihw.gov.au/reports-data/behaviours-risk-factors/domestic-violence/overview">millions</a> of Australians experience emotional abuse by an intimate partner at some stage in their lives.</p>
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<strong>
Read more:
<a href="https://theconversation.com/its-time-coercive-control-was-made-illegal-in-australia-114817">It's time 'coercive control' was made illegal in Australia</a>
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<h2>How has this worked internationally?</h2>
<p><a href="http://www.legislation.gov.uk/ukpga/2015/9/section/76/enacted">England and Wales</a> made coercive control <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/domesticabuseinenglandandwalesoverview/november2019">a crime in 2015</a>. Ireland and Scotland followed suit in 2019, with promising <a href="https://www.bbc.com/news/uk-scotland-49374667">early results in Scotland</a>. And last week a <a href="https://sd22.senate.ca.gov/news/2020-02-19-senator-rubios-bill-expands-legal-protections-domestic-violence-survivors">Californian senator</a> introduced a bill to criminalise coercive control.</p>
<p>To illustrate the types of cases these laws might apply to, consider the <a href="https://www.breakingnews.ie/ireland/man-who-made-almost-6000-phone-calls-to-girlfriend-jailed-in-countrys-first-coercive-control-conviction-981102.html">first successful conviction</a> for coercive control in Ireland. </p>
<p>According to <a href="https://www.breakingnews.ie/ireland/man-who-made-almost-6000-phone-calls-to-girlfriend-jailed-in-countrys-first-coercive-control-conviction-981102.html">media reports</a>, Kevin Dunleavy called his partner nearly 6,000 times in three months (more than 60 times a day). He made her take her phone with her when she left the house. He made her answer video calls so that she could show him where she was and who she was with. He threatened and attacked her. And he burned her clothes so she couldn’t leave the house.</p>
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<strong>
Read more:
<a href="https://theconversation.com/technology-facilitated-abuse-the-new-breed-of-domestic-violence-74683">Technology-facilitated abuse: the new breed of domestic violence</a>
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<p>Because the court could look at his behaviour as a whole, he was given a sentence that reflected the overall seriousness of his behaviour, nearly two years in prison.</p>
<h2>It’s not just more law, it’s an ideological shift</h2>
<p>In jurisdictions other than Tasmania, the types of behaviours we might call coercive control are recognised as forms of family violence. But, generally, these behaviours can only be prosecuted as a breach of an intervention order (otherwise known as a domestic or apprehended violence order).</p>
<p>This is an issue because many women who need protection do not have intervention orders. Even when they do, police <a href="https://www.theaustralian.com.au/nation/enforce-domestic-violence-orders-or-women-will-suffer/news-story/fbd512b1dd7abc22f3c5d40c1088816a">don’t always take action</a> when those orders are breached. And it sends the wrong message to victims: that these behaviours are only wrong if a court order is in place.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/317251/original/file-20200226-24680-12ewgic.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/317251/original/file-20200226-24680-12ewgic.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/317251/original/file-20200226-24680-12ewgic.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/317251/original/file-20200226-24680-12ewgic.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/317251/original/file-20200226-24680-12ewgic.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/317251/original/file-20200226-24680-12ewgic.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/317251/original/file-20200226-24680-12ewgic.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/317251/original/file-20200226-24680-12ewgic.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Not all victims of coercive abuse go to court to get an intervention order, so are not covered by existing domestic violence legislation around Australia.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/retro-photo-composite-greek-style-columns-315538304">from www.shutterstock.com</a></span>
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<p>Criminalising these abusive behaviours demonstrates our strongest denunciation of them. It legitimises victims’ perceptions that what they are experiencing is unacceptable. It gives the broader community a language and shared understanding that can lead to long-term changes in attitudes. It gives police and others in the justice system a tool to intervene. And because of that, it may even save some lives.</p>
<p>There are, though, some concerns. Most importantly, the criminal justice system already <a href="https://journals.sagepub.com/doi/full/10.1177/1748895817728561">struggles</a> to respond to physical violence. And women are often <a href="https://www.womenslegal.org.au/files/file/WLSV%20Policy%20Brief%201%20MisID%20July%202018.pdf">misidentified</a> as the perpetrator, especially in intervention order proceedings. Why should we expect it to do any better with the more complex concept of coercive control?</p>
<h2>Training is critical</h2>
<p>The answer, which is supported by conversations we’ve had with police and service providers in the UK, is that with proper resources and training, criminalising coercive control becomes more than just adding another crime to the thousands already in the statute book. </p>
<p>It necessitates a fundamental shift in the way police, prosecutors and judges see domestic abuse, not as a series of separate events but more like the way victims experience it: cumulatively, and comprehensively.</p>
<p>Criminalising coercive control isn’t, though, as simple as just cutting and pasting from one jurisdiction to another. It would require a detailed review what’s happened in other countries, and how best to legislate in each state and territory. It will also take time to implement, and uptake may be slow, as has been the case in <a href="https://theconversation.com/coercive-control-cases-have-doubled-but-police-still-miss-patterns-of-this-domestic-abuse-100347">England and Wales</a>. That is, this isn’t the sort of reform that can happen overnight.</p>
<p>Instead, criminalising coercive control is the kind of reform that, <em>done right</em>, could lead to generational change in how we as a society conceptualise domestic violence.</p>
<hr>
<p><em>If this article has raised issues for you or someone you know, contact the <a href="https://www.1800respect.org.au/">national sexual assault, family and domestic violence counselling service</a> – 1800 RESPECT (1800 737 732).</em></p><img src="https://counter.theconversation.com/content/132444/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Psychological abuse and controlling behaviours can be apparent before perpetrators murder their partners. So let’s take these coercive behaviours more seriously and make them a crime.Dr Paul McGorrery, PhD Candidate in Criminal Law, Deakin UniversityMarilyn McMahon, Deputy Dean, School of Law, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1301312020-01-20T03:03:06Z2020-01-20T03:03:06ZCSIRO wants our laws turned into computer code. Here’s why that’s a bad idea<figure><img src="https://images.theconversation.com/files/310773/original/file-20200120-118311-w5qgq5.jpg?ixlib=rb-1.1.0&rect=1%2C0%2C997%2C666&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The very nature of law is that it's ever-changing and open to interpretation. </span> <span class="attribution"><span class="source">from www.shutterstock.com</span></span></figcaption></figure><p>Most of our laws are dense, obscure and effectively unintelligible for most people (even some lawyers). In a country where, every year, <a href="https://www.lawcouncil.asn.au/justice-project/access-to-justice">25%</a> of the population face serious legal issues yet often cannot afford to protect their rights in court, any move to make the law more comprehensible seems like a good idea.</p>
<p>However, <a href="https://www.afr.com/companies/financial-services/laws-should-be-published-in-code-so-computers-can-read-them-csiro-20200115-p53rlu">reforms proposed by CSIRO</a> to embrace “legislation-as-code” – where the law would be directly read and applied by machines – is not just misguided and deaf to history, it’s dangerous.</p>
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Read more:
<a href="https://theconversation.com/we-need-human-oversight-of-machine-decisions-to-stop-robo-debt-drama-118691">We need human oversight of machine decisions to stop robo-debt drama</a>
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<h2>‘Legislation-as-code’</h2>
<p>The argument for this idea goes that, as the law is just a series of rules, we should be able to reduce those rules to programmable code. When the legislation is drafted, it will be written both in human-readable words and machine-readable code. The aim is legislation could be directly applied by machines.</p>
<p>This <a href="https://digital-legislation.net/">agenda</a> in Australia is being led by Digital Transformation Agency and Department of Human Services in collaboration with <a href="https://data61.csiro.au/">Data61</a>, CSIRO’s AI and digital science arm. The approach <a href="https://www.dta.gov.au/blogs/exploring-opportunities-digital-legislation-policy-and-rules">promises</a> “a world where government rules are easy to find, understand and follow” which should improve compliance while reducing costs. In recent submissions made to the Senate, CSIRO <a href="https://www.afr.com/companies/financial-services/laws-should-be-published-in-code-so-computers-can-read-them-csiro-20200115-p53rlu">said</a>:</p>
<blockquote>
<p>The goal is that computer-assisted reasoning using these logics should give the same answers as judges and lawyers doing legal reasoning about the black-letter law.</p>
</blockquote>
<p>The move to experiment with legislation as code is attracting attention across the world, with Australia following <a href="https://en.digst.dk/policy-and-strategy/digital-ready-legislation/">Denmark’s</a> and <a href="https://www.digital.govt.nz/dmsdocument/95-better-rules-for-government-discovery-report/html">New Zealand’s</a> leads.</p>
<p>Unfortunately, as great as these ambitions sound, they ignore the very nature of law itself.</p>
<p>Law in practice is always dynamic and discretionary. Every law requires interpretation: does a directive to only drive on the left allow you to drive on the right to avoid a child playing in the road? What if it were not a child, but a dog? The law does not and cannot provide a single right answer, and will always depend upon judgement.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/310775/original/file-20200120-118323-15e1ygk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/310775/original/file-20200120-118323-15e1ygk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/310775/original/file-20200120-118323-15e1ygk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/310775/original/file-20200120-118323-15e1ygk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/310775/original/file-20200120-118323-15e1ygk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/310775/original/file-20200120-118323-15e1ygk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/310775/original/file-20200120-118323-15e1ygk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/310775/original/file-20200120-118323-15e1ygk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The law says cars must drive on the left in Australia. But what if they have to cross the road to avoid hitting a child?</span>
<span class="attribution"><span class="source">from www.shutterstock.com</span></span>
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<p>It follows that judges make law. Not in the same way as parliament which actually passes the laws, but in their complex choices, judges contribute to the changing way we interpret and enforce laws.</p>
<h2>The problem with codifying law</h2>
<p>To understand the problem, some history is in order. During the French Revolution, the gross misbehaviour of the aristocratic judges of the Ancien Régime motivated the restriction of judicial power. </p>
<p>In the new order judges were expected to be the “<a href="https://archive.org/details/spiritoflaws01montuoft">bouche de la loi</a>”: the mouthpiece for the law. The great Napoleonic Code of 1804 sought to reduce all French law into a single comprehensive and exhaustive document, clearly written and accessible to all, which judges could apply in an objective, disinterested and purely logical manner.</p>
<p>This conception of the judge held sway for much of the 19th century, yet every attempt to prevent judges considering factors beyond the code, or altering the law by its application, ended in failure. While the concept was politically attractive, it was internally incoherent and bore little relationship to practice.</p>
<p>By the end of that century, theorists such as <a href="https://en.wikipedia.org/wiki/Fran%C3%A7ois_G%C3%A9ny">François Gény</a> and <a href="https://en.wikipedia.org/wiki/Oliver_Wendell_Holmes_Jr.">Oliver Wendell Holmes</a> led a revolt against the practice.</p>
<p>This period showed that laws are incomplete, logical deduction isn’t always adequate, and judges need to be able to properly evaluate and take extra-legal considerations into account. </p>
<p>Holmes <a href="https://www.gutenberg.org/files/2449/2449-h/2449-h.htm">observed</a>: </p>
<blockquote>
<p>[the] life of the law has not been logic: it has been experience.</p>
</blockquote>
<p>It is beyond ironic that the “legislation-as-code” movement now shares a name as well as an ambition with the Napoleonic Code. By misconceiving law as a complete system of rules that can be reduced to logical code that excludes discretion and evaluation, it is doomed to repeat the errors of the past.</p>
<p>To allow machines to “interpret” legislation as code does not eliminate the role of values, but rather replaces the evolving values of the judiciary with the values of the programmer and reinforces bias towards past values choices.</p>
<p>The “legislation-as-code” approach risks reinforcing a disingenuous conception of judges as mere dispute-resolvers and not as co-equal governors; the third arm of government. </p>
<p>It distracts from the many ways judges are held to account and promotes an expansive role for parliament and the executive. And as the <a href="https://theconversation.com/we-need-human-oversight-of-machine-decisions-to-stop-robo-debt-drama-118691">robodebt saga</a> has already shown, it will inevitably be the vulnerable who suffer most when the technology fails.</p>
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Read more:
<a href="https://theconversation.com/robo-debt-is-only-one-way-government-stigmatises-claimants-theres-only-so-much-a-class-action-can-do-123686">Robo-debt is only one way government stigmatises claimants. There's only so much a class action can do</a>
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<img src="https://counter.theconversation.com/content/130131/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joe McIntyre receives funding from the Law Foundation of South Australia to examine the role of Online Courts for residential tenancy disputes. </span></em></p>Assuming machines could take the place of judges belies their role as the third arm of government and makers of law.Joe McIntyre, Senior Lecturer in Law, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1275122020-01-01T21:03:26Z2020-01-01T21:03:26ZSwearing in public is still illegal, but you probably won’t be charged if you’re white<figure><img src="https://images.theconversation.com/files/306047/original/file-20191210-95130-fw3tad.jpg?ixlib=rb-1.1.0&rect=166%2C22%2C2829%2C1971&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">When delivered to an unsuspecting group, especially where children are present, swearing can amount to a criminal offence.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p><em>This article contains explicit language.</em></p>
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<p>Is it ever OK to swear? Yes. Swearing can be quite acceptable when delivered to drive home a particular point to a specific audience, enhance a comedic presentation, or deal with pain. </p>
<p>I am sure, in that last context, that midwives and partners have heard it all, many times over. And no-one would begrudge the delivering mother that opportunity. But in my experience, the use of profanity is usually gratuitous, repeatedly designed to offend and, to my mind, frequently just a sign of laziness in speech.</p>
<p>In fact, when delivered to an unsuspecting group, especially where children are present, it can amount to a criminal offence.</p>
<p>So what does the law say about letting fly with a few well-chosen expletives?</p>
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<figcaption><span class="caption">Kevin Rudd was applauded after saying “political shit storm” on TV.</span></figcaption>
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<h2>Don’t say f*ck in front of children</h2>
<p>Public profanity is an offence in every jurisdiction in Australia. The South Australian <a href="http://www5.austlii.edu.au/au/legis/sa/consol_act/soa1953189/s22.html">Summary Offences Act</a> is one good example of this type of prohibition:</p>
<blockquote>
<p>A person who uses indecent or profane language or sings any indecent or profane song or ballad in a public place; or in a police station; or which is audible from a public place; or which is audible in neighbouring or adjoining occupied premises; or with intent to offend or insult any person is guilty of an offence. Maximum penalty $250.</p>
</blockquote>
<p>But <a href="https://theconversation.com/avoid-a-bum-steer-this-summer-heres-what-australian-law-says-about-public-nudity-107525">context</a> is everything. Saying “fuck” in front of families at the local sports ground would likely lead to a fine if someone complained to the local police. But the same words used by a comedian at a performance for paying patrons later that night <a href="http://www.austlii.edu.au/au/journals/UNSWLJ/2013/20.html">will incur no such sanctioning</a>.</p>
<p>Anyone who has regularly attended live theatre in the past decade, or who watches late night television or listens to late night radio, would know that, over the years, the use of profane language has become widespread. </p>
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Read more:
<a href="https://theconversation.com/the-c-word-may-be-the-last-swearing-taboo-but-doesnt-shock-like-it-used-to-54813">The 'c-word' may be the last swearing taboo, but doesn't shock like it used to</a>
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<p>Indeed, language is forever evolving. Words that used to be uttered sparingly are now deployed in media conversations as a matter of course. They’re subject to “language warnings” informed by the various radio and television codes of conduct, with television codes being <a href="https://www.acma.gov.au/standards-tv-and-radio-broadcasters">particularly cognisant</a> of the likelihood of children viewers.</p>
<h2>Norm and Ahmed</h2>
<p>Any modern history of the law of profanity in Australia must begin with the story of Alex Buzo’s 1968 play, “<a href="https://theconversation.com/the-great-australian-plays-the-front-room-boys-and-new-wave-theatre-72956">Norm and Ahmed</a>”, which was destined to be seen only by adult audiences. </p>
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Read more:
<a href="https://theconversation.com/foul-mouthed-minions-some-myths-about-children-and-swearing-44916">Foul-mouthed Minions? Some myths about children and swearing</a>
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<p>In the play, Buzo presents racial prejudice as profoundly irrational in the behaviour of ordinary Australians. The play script originally ended with the line “fuckin’ boong”. For its debut production in 1968, “fuckin’” became “bloody”. But the following year in Brisbane, Buzo’s original line was used. </p>
<p>After one performance, Norman Staines, the actor who said the line, was arrested. But it was not the use of the dreadful racial slur that had attracted the attention of the two police who mounted the stage, but rather the use of the word “fuckin’”.</p>
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<p>The magistrate’s conviction of Staines was later overturned by the Supreme Court of Queensland on the grounds the word <a href="http://ro.uow.edu.au/cgi/viewcontent.cgi?article=1265&context=ltc">was not obscene</a> in the context of the play. The High Court later <a href="http://eresources.hcourt.gov.au/historical/showbyHandle/1/16677">agreed</a>.</p>
<p>There is little doubt the judgements of these courts set a precedent. Swearing was now acceptable if employed in the context of adult entertainment. </p>
<h2>Racist arrests</h2>
<p>There are some interesting socio-legal writings on this subject, too. Criminologist Paul Wilson discovered in the New South Wales outback town of Moree in the late 1970s that the police were using the word “fuck” liberally in their banter with each other, while <a href="https://www.anu.edu.au/fellows/jbraithwaite/_documents/Articles/1978_Pervs,%20Pimps%20and%20Power-Brokers.pdf">regularly arresting</a> Aboriginal men in the street for using the same word on the basis it was “offensive”. </p>
<p>Wilson concluded from his research experience that rule-makers are often the most flagrant rule-breakers.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/we-need-evidence-based-law-reform-to-reduce-rates-of-indigenous-incarceration-94228">We need evidence-based law reform to reduce rates of Indigenous incarceration</a>
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<p>What’s more, practising criminal lawyers know police regularly use the offensive language law to give them the widest possible range of excuses to arrest someone giving them grief. </p>
<p>It’s difficult to say how many people today around Australia are charged with using offensive, profane or insulting language in any one year, but you could safely surmise it’s in the thousands. </p>
<p>What we can say from <a href="https://www.bocsar.nsw.gov.au/Documents/RCS-Annual/Report-Recorded-Crime-Statistics-2015-rcs2015.pdf">evidence</a> in NSW is that Indigenous people, who comprise 3% of the population, make up <a href="https://independentaustralia.net/life/life-display/australia-where-offensive-and-insulting-language-is-actually-a-crime,10319">approximately one-third</a> of those charged and taken to court on account of their use of language deemed by police to be offensive. </p>
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<strong>
Read more:
<a href="https://theconversation.com/factcheck-are-first-australians-the-most-imprisoned-people-on-earth-78528">FactCheck: are first Australians the most imprisoned people on Earth?</a>
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<p>More recently, in 2015, a political activist <a href="https://www.abc.net.au/news/2019-08-07/activist-allegedly-offensive-sign-compared-to-fcuk-danny-lim/11391878">wore a sandwich board sign</a> that linked former Prime Minister Tony Abbott with the “c” word. The activist was arrested and charged with offensive conduct. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1202701126778286085"}"></div></p>
<p>The matter then wound its way through the courts. Two years later, magistrate Jacqueline Milledge concluded the law was concerned with what would offend the “hypothetical reasonable person”, <a href="https://www.theguardian.com/australia-news/2019/aug/30/cheeky-but-not-offensive-serial-sydney-protester-danny-lim-wins-appeal-over-sign">saying</a>:</p>
<blockquote>
<p>It’s not someone who is thin-skinned, who is easily offended […] It’s someone who can ride out some of the crudities of life. [The sign is] provocative and cheeky but it is not offensive.</p>
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<p>So where does all of this leave us? Can we use profanities? Yes, of course, but one should choose one’s audience carefully, lest the long arm of the law take an interest in our public utterances.</p><img src="https://counter.theconversation.com/content/127512/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre receives funding from The Criminology Research Council. He is on the Labor Party (SA) State Council. </span></em></p>Here’s when the law says it’s okay to let rude words fly.Rick Sarre, Professor of Law and Criminal Justice, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1211802019-08-11T19:59:09Z2019-08-11T19:59:09ZEnvironmental destruction is a war crime, but it’s almost impossible to fall foul of the laws<figure><img src="https://images.theconversation.com/files/287274/original/file-20190808-144878-16p5up8.jpg?ixlib=rb-1.1.0&rect=80%2C194%2C1614%2C1002&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">It was defoliants, seen here during Operation Ranch Hand in the Vietnam War, that prompted action to protect the environment during conflicts.</span> <span class="attribution"><a class="source" href="https://www.nationalmuseum.af.mil/Upcoming/Photos/igphoto/2000445232/">National Museum of the US Air Force </a></span></figcaption></figure><p>An <a href="https://www.nature.com/articles/d41586-019-02248-6" title="Stop military conflicts from trashing environment">open letter</a> from 24 scientists published in Nature last month calls on governments to draft a new Geneva Convention dedicated to protecting the environment during armed conflict.</p>
<p>This inspired a <a href="https://www.motherjones.com/environment/2019/07/should-destroying-the-environment-be-a-war-crime/">number</a> of <a href="https://www.theguardian.com/law/2019/jul/24/make-environmental-damage-a-war-say-scientists-geneva-convention">headlines</a> that <a href="https://www.vox.com/future-perfect/2019/7/26/8931699/environment-war-crime-scientists-nature-geneva-convention">misleadingly</a> said the scientists want environmental destruction to be made a war crime. </p>
<p>But environmental destruction is already recognised as a war crime by the International Criminal Court. The existing legal framework governing armed conflict also provides some protections for the environment. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/more-than-1-700-activists-have-been-killed-this-century-defending-the-environment-120352">More than 1,700 activists have been killed this century defending the environment</a>
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<p>The problem is these protections are inadequate, inconsistent, unclear, and most military behaviour won’t fall foul of these laws.</p>
<h2>The legal protections already in place</h2>
<p>There are currently four <a href="https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions">Geneva Conventions and three Additional Protocols</a> that are supposed to regulate conduct during armed conflict, sometimes known as the rules of war.</p>
<p>The original four Geneva Conventions, which celebrate their <a href="https://www.redcross.org.au/stories/ihl-blog/gc70">70th anniversary</a> this year, contain no explicit mention of the natural environment. </p>
<p>The use of <a href="https://theconversation.com/agent-orange-exposed-how-u-s-chemical-warfare-in-vietnam-unleashed-a-slow-moving-disaster-84572">Agent Orange</a> (and Agents White and Blue) to defoliate huge spans of land during the Vietnam War led to the introduction of the first specific protections for the environment during armed conflict. </p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/wUZA0GAMmfI?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">It’s shaky video to begin with but 18 seconds in you see US soldiers spraying Agent Orange during the Vietnam War.</span></figcaption>
</figure>
<p>Following the Vietnam War, two major developments in the law occurred.</p>
<p>The first was the adoption of the United Nation’s <a href="https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-1&chapter=26&clang=_en">Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques Convention</a> (ENMOD) that prohibits the hostile use of environment-altering techniques that have “widespread, long-lasting, or severe effects”.</p>
<p>The second was the inclusion of provisions in Additional Protocol I (API) that <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ART/470-750044?OpenDocument">prohibits</a> methods or means intended or expected to cause “widespread, long term, and severe damage to the natural environment” during warfare.</p>
<h2>Near impossibly high standards</h2>
<p>Both treaties set a very high threshold for falling foul of the prohibitions. API requires that all three elements of damage — widespread, long term, and severe — must be met for military action to be in violation of this provision.</p>
<p>The consequence is that most military behaviour, even when damaging the environment, won’t be in violation of these laws.</p>
<p>Making it even more difficult, the meaning of the three terms differs between the two, and there is ongoing disagreement as to their definition. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/287283/original/file-20190808-144851-ycqfs0.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/287283/original/file-20190808-144851-ycqfs0.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/287283/original/file-20190808-144851-ycqfs0.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=181&fit=crop&dpr=1 600w, https://images.theconversation.com/files/287283/original/file-20190808-144851-ycqfs0.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=181&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/287283/original/file-20190808-144851-ycqfs0.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=181&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/287283/original/file-20190808-144851-ycqfs0.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=227&fit=crop&dpr=1 754w, https://images.theconversation.com/files/287283/original/file-20190808-144851-ycqfs0.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=227&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/287283/original/file-20190808-144851-ycqfs0.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=227&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">While an understanding was reached to determine the definitions in ENMOD, there is still dispute about the meaning of the terms in API. The definitions provided here are among the more commonly accepted.</span>
<span class="attribution"><span class="source">Shireen Daft</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>The only environmental destruction in recent times that has been considered to meet such a high threshold was the <a href="https://www.theguardian.com/world/2003/jan/19/iraq5">setting alight of Kuwaiti oil fields by Iraqi forces</a> as they withdrew during the 1991 Gulf War.</p>
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<a href="https://images.theconversation.com/files/287291/original/file-20190808-144847-niiysk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/287291/original/file-20190808-144847-niiysk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/287291/original/file-20190808-144847-niiysk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/287291/original/file-20190808-144847-niiysk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/287291/original/file-20190808-144847-niiysk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/287291/original/file-20190808-144847-niiysk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/287291/original/file-20190808-144847-niiysk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/287291/original/file-20190808-144847-niiysk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Kuwaiti oil well fire, south of Kuwait City, in March 1991.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Kuwaiti_Oil_Well_Fire.jpg">Wikimedia/EdJF</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>The <a href="https://uncc.ch/category-f">United Nations Compensation Commission</a> held Iraq liable for the environmental damage caused in Kuwait. But because Iraq was not a party to either ENMOD or API, the Commission applied a unique legal standard derived from <a href="https://peacemaker.un.org/sites/peacemaker.un.org/files/IQ%20KW_910403_SCR687%281991%29_0.pdf">Security Council Resolution 687</a> and Iraq is still paying compensation to Kuwait to this day.</p>
<p>Neither ENMOD nor API specifies that a breach of these provisions constitutes a war crime. This came in 2002 when the <a href="http://legal.un.org/icc/statute/99_corr/cstatute.htm">Rome Statute</a> establishing the <a href="https://www.icc-cpi.int/">International Criminal Court</a> came into force. </p>
<p>The Rome Statute says it is a war crime to intentionally cause “widespread, long-term, and severe damage to the natural environment which would be clearly excessive” to the military advantage to be obtained.</p>
<p>The terms are not defined in the Rome Statute, and what is meant by “clearly excessive” is subjective, and introduces a test of proportionality.</p>
<h2>Another Geneva Convention?</h2>
<p>A new international agreement that balances the interests of environmental protection and respects the laws on armed conflict could be of enormous benefit. </p>
<p>The existing legal framework is only equipped to deal with direct attacks on the natural environment. </p>
<p>But this ignores the many other ways the environment is affected by conflict. Resources such as <a href="https://edition.cnn.com/2011/12/05/world/africa/conflict-diamonds-explainer/index.html">diamonds</a>, <a href="https://www.aspistrategist.org.au/the-conflict-mineral-coltan-mining-in-dr-congo-and-australia/">coltan</a>, <a href="https://www.globalwitness.org/en/campaigns/forests/bloodtimber/">timber</a> and <a href="https://www.newscientist.com/article/mg22229692-700-ivory-poaching-funds-most-war-and-terrorism-in-africa/">ivory</a> are all used to help fund conflicts, and this can place enormous stress on the environment. </p>
<p>A particular gap is that no consideration is given in the existing framework to non-human species - to wildlife affected by war or to <a href="https://edition.cnn.com/2019/05/03/europe/beluga-whale-norway-scli-intl/index.html">animals used for military purposes</a>. Yet conflict has proved the <a href="https://www.icrc.org/en/document/natural-environment-neglected-victim-armed-conflict">biggest predictor</a> of population declines in wild species.</p>
<p>But a new treaty that creates strong, effective, and enforceable protections requires significant political will. </p>
<p>An <a href="https://www.toxicremnantsofwar.info/whatever-happened-to-the-5th-geneva-convention/">attempt</a> was made two decades ago, headed by Greenpeace, but no agreement could be reached. That attempt was made during a time when international cooperation and treaty development was at its highest, following the end of the Cold War. </p>
<p>In the current political and social environment it seems unlikely any attempt for such an agreement would be successful. At best, we would see watered-down protections, no stronger than what is already in place. Thus drafting such a Convention now could do more harm than good, in the long run.</p>
<h2>If not a new treaty, then what?</h2>
<p>The International Law Commission (ILC) has released its <a href="http://legal.un.org/ilc/guide/8_7.shtml">latest report</a> – transmitted on the 8th August 2019 for commentary from stakeholders – dealing with the issue of protecting the environment during armed conflict. This was what inspired the Open Letter from the scientists in the first place.</p>
<p>The <a href="http://legal.un.org/docs/index.asp?symbol=A/CN.4/L.937">Draft Principles</a> it is producing are not new principles of law, but those already found in the existing legal framework. Unfortunately the work produced so far continues to use “widespread, long term, and severe” with no clarity as to what they mean. </p>
<p>But they do confirm that all the fundamental principles of the rules of war apply to the environment, and should be interpreted “with a view to its protection”. The environment should not be a target, and the impact on the environment must be taken into consideration in military operations. </p>
<p>The work of the ILC should inform governments of the interpretation of existing law. Governments should then give more attention to the environment in the operational guidelines used by their militaries.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/some-good-conservation-news-indias-tiger-numbers-are-going-up-121055">Some good conservation news: India's tiger numbers are going up</a>
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<p>The Australian <a href="https://trove.nla.gov.au/version/39374943">Law of Armed Conflict</a> manual, used by our defence forces, already acknowledges they have a duty to protect the natural environment. The next step is to move beyond this general principle to the specific, and have clear guidelines about what protecting the environment during armed conflict means, in practice. </p>
<p>The International Committee of the Red Cross is also currently updating its <a href="https://www.icrc.org/en/doc/resources/documents/article/other/57jn38.htm">guidelines</a> for all military manuals to ensure the environment is a consideration to be evaluated during all military operations. </p>
<p>While the world might not yet be ready to consider a new Geneva Convention relating to the environment, the survival of our natural environment does depend on changes being made to the way the war is conducted.</p><img src="https://counter.theconversation.com/content/121180/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shireen Daft does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A group of scientists want a new Geneva Convention to safeguard the environment during wars and conflicts. We already have such rules, but they’re inadequate, inconsistent and unclear.Shireen Daft, Lecturer, Macquarie Law School, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1203942019-07-17T16:03:39Z2019-07-17T16:03:39ZTrump wasn’t the first president to confront the Supreme Court – and back down<p>A key presidential election is approaching. The U.S. Supreme Court hears a case with powerful political implications. The court rules, but the populist president doesn’t care. Our national commitments – to the Constitution, to morality, to the rule of law – seem at risk.<br>
Then, the president backs down. The nation survives.</p>
<p>This might be the story of President Trump’s short-lived threat to get a citizenship question on the census <a href="https://twitter.com/realDonaldTrump/status/1146435093491277824">in defiance of the Supreme Court</a>. Instead, it’s the story of President Andrew Jackson and <a href="https://supreme.justia.com/cases/federal/us/31/515/">Worcester v. Georgia, decided in 1832</a>.</p>
<p>Like the modern relationship between the president and the court, the case dominated public debate, raising deep questions about the endurance of the rule of law. At the height of the crisis, former President John Quincy Adams wrote, “<a href="https://www.worldcat.org/title/memoirs-of-john-quincy-adams-comprising-portions-of-his-diary-from-1795-to-1848/oclc/24013181">The Union is in the most imminent danger of dissolution</a>.”</p>
<h2>Cherokee Nation challenges Georgia</h2>
<p>Worcester v. Georgia had its genesis in disputes between the Cherokee Nation and the state of Georgia.</p>
<p>Treaties between the <a href="https://avalon.law.yale.edu/18th_century/chr1791.asp">United States and the Cherokee Nation</a> solemnly guaranteed the the tribal nation independence on its reservation in Georgia. But Georgia wanted the <a href="https://www.smithsonianmag.com/history/the-cherokees-vs-andrew-jackson-277394/">Cherokees gone, particularly after gold was discovered on their land</a>. </p>
<p>The United States tried to convince the Cherokees to move west, but most <a href="https://www.smithsonianmag.com/history/the-cherokees-vs-andrew-jackson-277394/">refused to leave their homeland</a>.</p>
<p>In response, Georgia passed laws asserting its control over the reservation, <a href="https://supreme.justia.com/cases/federal/us/31/515/#tab-opinion-1936718">prohibiting the Cherokee government from meeting and posting guards over the gold mines</a>. President Andrew Jackson did nothing to stop this violation of U.S.-Cherokee treaties. Instead, at the request of the Georgia governor, <a href="https://newrepublic.com/article/63490/their-own-good">he removed federal troops from the reservation</a>.</p>
<p>The Cherokees mounted <a href="https://www.fjc.gov/history/timeline/cherokee-nation-v.-georgia">a legal challenge</a>, and tried to take their case to the Supreme Court. Their lawyer, William Wirt, and the justices worried that President Jackson would not enforce a decision in favor of the Cherokees. </p>
<p>But, <a href="https://books.google.com/books?id=phmyynDXxG0C&pg=PA292&lpg=PA292&dq=william+wirt+%22In+a+land+of+laws,+the+presumption+is+that+the+decision+of+courts+will+be+respected%22&source=bl&ots=N9wo-sb3vW&sig=ACfU3U1gc7wYKM_VL76n5CvNUbW6cjVwWw&hl=en&sa=X&ved=2ahUKEwjg9pGkyrnjAhVUUs0KHSY5DMMQ6AEwAHoECAIQAQ#v=onepage&q=william%20wirt%20%22In%20a%20land%20of%20laws%2C%20the%20presumption%20is%20that%20the%20decision%20of%20courts%20will%20be%20respected%22&f=false">Wirt told the court</a>, “What is the value of that government in which the decrees of its courts can be defied and mocked at with impunity … It is no government at all.” </p>
<p><a href="https://www.oyez.org/justices/john_marshall">Chief Justice John Marshall</a>, however, ducked the issue, holding that the court <a href="https://supreme.justia.com/cases/federal/us/30/1/">lacked jurisdiction over the case</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/284379/original/file-20190716-173342-11kahjp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/284379/original/file-20190716-173342-11kahjp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/284379/original/file-20190716-173342-11kahjp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=743&fit=crop&dpr=1 600w, https://images.theconversation.com/files/284379/original/file-20190716-173342-11kahjp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=743&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/284379/original/file-20190716-173342-11kahjp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=743&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/284379/original/file-20190716-173342-11kahjp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=934&fit=crop&dpr=1 754w, https://images.theconversation.com/files/284379/original/file-20190716-173342-11kahjp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=934&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/284379/original/file-20190716-173342-11kahjp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=934&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Chief Justice John Marshall.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/John_Marshall#/media/File:John_Marshall_by_Henry_Inman,_1832.jpg">Henry Inman/Virginia Memory</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Georgia wasn’t done attacking the sovereignty of the Cherokees. In 1830, the state demanded that non-Indians take a loyalty oath to Georgia before going onto the Cherokee Reservation. Missionaries Samuel Worcester and Elizur Butler – both pro-Cherokee and anti-slavery – <a href="https://dlg.usg.edu/record/dlg_zlna_ch045">refused</a> <a href="https://www.docsteach.org/documents/document/worcester-v-georgia-indictment">to sign</a>. </p>
<p>The law made an exception for federal employees, and Worcester had served as federal postmaster, but Georgia persuaded the Jackson administration to <a href="https://www.jstor.org/stable/pdf/2205966.pdf?refreqid=excelsior%3Ab6a6b2170502f6c8fc9d56a202d1edb4">dismiss Worcester so the exception would not apply</a>. </p>
<p>The state sentenced the missionaries to four years of hard labor. Because the case pitted Georgia against Worcester, a citizen of Vermont, the Supreme Court could hear the case directly, rather than on appeal from the state courts. The court could <a href="https://newrepublic.com/article/63490/their-own-good">finally rule on Georgia’s authority over Cherokee land</a>.</p>
<h2>The ‘supremacy of the laws’</h2>
<p>The case was argued in <a href="https://www.britannica.com/event/United-States-presidential-election-of-1832">1832, an election year</a>, and Jackson’s opponents campaigned on his disregard for the courts.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/284380/original/file-20190716-173355-l68123.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/284380/original/file-20190716-173355-l68123.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/284380/original/file-20190716-173355-l68123.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/284380/original/file-20190716-173355-l68123.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/284380/original/file-20190716-173355-l68123.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/284380/original/file-20190716-173355-l68123.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1005&fit=crop&dpr=1 754w, https://images.theconversation.com/files/284380/original/file-20190716-173355-l68123.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1005&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/284380/original/file-20190716-173355-l68123.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1005&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Andrew Jackson.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Andrew_Jackson#/media/File:Andrew_Jackson_Portrait.jpg">Alexander Hay Ritchie/United States Library of Congress</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Speeches at the National Republican Convention, where they nominated the candidate <a href="https://www.britannica.com/event/United-States-presidential-election-of-1832">Henry Clay to challenge Jackson</a>, condemned Georgia’s “inhuman and unconstitutional outrages” against the missionaries and praised Jackson’s opponent Clay as a man who would “<a href="https://www.jstor.org/stable/1227621?seq=1#metadata_info_tab_contents">assert the supremacy of the laws</a>.” </p>
<p>For Chief Justice John Marshall, approaching the end of his career, the case and the election might decide whether his <a href="https://books.google.com/books?id=zCW3592c7CgC&printsec=frontcover&dq=kent+newmyer+marshall+heroic+age&hl=en&sa=X&ved=0ahUKEwj9uu3D0bnjAhVQGs0KHdkEBdwQ6AEIKjAA#v=onepage&q=worcester&f=false">legacy in building a strong and independent Supreme Court would survive him</a>. </p>
<p>Georgia, meanwhile, signaled its disdain for the court by refusing to even <a href="https://newrepublic.com/article/63490/their-own-good">appear for oral argument in Worcester</a>. </p>
<p>The court’s <a href="https://www.oyez.org/cases/1789-1850/31us515">5-1 opinion</a> resoundingly vindicated the Cherokees. </p>
<p>Federal treaties, the chief justice wrote, “solemnly pledge the faith of the United States” to protect Cherokee self-government; the Constitution made those treaties “the supreme law of the land.” </p>
<p>Georgia’s attempt to govern the reservation, therefore, was “repugnant to the constitution, laws, and treaties of the United States.” </p>
<p>But Georgia did not care, and Jackson would not force it to release the missionaries. </p>
<p>When the Georgia Guard jailed Cherokees for celebrating the decision, Jackson wrote his brigadier general that the “decision of the supreme court has fell still born.” Newspapers across the country reported that <a href="https://www.jstor.org/stable/2205966?seq=1#metadata_info_tab_contents">Jackson refused to enforce the decision</a>. That July, in vetoing another bill, Jackson declared that the <a href="https://avalon.law.yale.edu/19th_century/ajveto01.asp">court had no power over the president</a>.</p>
<p>The chief justice wrote despondently, “I yield slowly and reluctantly to the conviction that <a href="https://newrepublic.com/article/63490/their-own-good">our Constitution cannot last</a>.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/284539/original/file-20190717-147318-1utoteg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/284539/original/file-20190717-147318-1utoteg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/284539/original/file-20190717-147318-1utoteg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=720&fit=crop&dpr=1 600w, https://images.theconversation.com/files/284539/original/file-20190717-147318-1utoteg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=720&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/284539/original/file-20190717-147318-1utoteg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=720&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/284539/original/file-20190717-147318-1utoteg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=905&fit=crop&dpr=1 754w, https://images.theconversation.com/files/284539/original/file-20190717-147318-1utoteg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=905&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/284539/original/file-20190717-147318-1utoteg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=905&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Cherokee Chief John Ross.</span>
<span class="attribution"><a class="source" href="https://cdn.loc.gov/service/pnp/pga/07500/07513v.jpg">Library of Congress</a></span>
</figcaption>
</figure>
<h2>Dangerous repercussions</h2>
<p>Perhaps Trump was channeling Jackson, his favorite president, when he tweeted that <a href="https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf">there would be a citizenship question on the census a week after the court ruled against his administration’s attempt to add one</a>. Certainly the assertion raised – as Trump has throughout his presidency – a threat to <a href="https://www.msn.com/en-us/news/politics/trump-says-he-is-thinking-of-executive-order-to-revive-census-citizenship-question/ar-AADUfJy">the constitutional balance of powers</a> </p>
<p>But Jackson quickly realized that failing to enforce federal law in Worcester had dangerous repercussions.</p>
<p>In December 1832, shortly after Jackson’s reelection, South Carolina passed the <a href="https://avalon.law.yale.edu/19th_century/ordnull.asp">Nullification Ordinance</a>, declaring federal tariffs illegal in the state. </p>
<p><a href="https://avalon.law.yale.edu/19th_century/ajack001.asp">Jackson</a> <a href="https://www.loc.gov/rr/program/bib/ourdocs/nullification.html">condemned the state</a> and supported a <a href="https://www.loc.gov/law/help/statutes-at-large/22nd-congress/session-2/c22s2ch57.pdf">“Force Bill”</a> that, for the first time, gave federal marshals clear power to enforce U.S. laws. Any doubt that federal officials could not force Georgia to release the missionaries was gone.</p>
<p>Rather than force a public confrontation, Jackson’s allies went to Georgia Gov. Lumpkin and persuaded him to pardon the missionaries still languishing in jail. </p>
<p>The <a href="https://newrepublic.com/article/63490/their-own-good">constitutional crisis was averted</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/284534/original/file-20190717-147307-19eb9kj.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/284534/original/file-20190717-147307-19eb9kj.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/284534/original/file-20190717-147307-19eb9kj.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=573&fit=crop&dpr=1 600w, https://images.theconversation.com/files/284534/original/file-20190717-147307-19eb9kj.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=573&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/284534/original/file-20190717-147307-19eb9kj.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=573&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/284534/original/file-20190717-147307-19eb9kj.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=720&fit=crop&dpr=1 754w, https://images.theconversation.com/files/284534/original/file-20190717-147307-19eb9kj.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=720&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/284534/original/file-20190717-147307-19eb9kj.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=720&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A historical marker in Georgia for the Cherokee Trail of Tears.</span>
<span class="attribution"><span class="source">Author supplied</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>Removal in a different way</h2>
<p>All did not end well for the Cherokees. </p>
<p>In 1835, while Cherokee Principal Chief John Ross was in Washington seeking protection from the U.S., Jackson’s agents got individual Cherokees to sign <a href="https://www.smithsonianmag.com/history/the-cherokees-vs-andrew-jackson-277394/">a treaty agreeing to move to a new reservation west of the Mississippi</a>. </p>
<p>On the strength of the false treaty, the U.S. rounded up the Cherokee people and forced them west. The <a href="https://www.britannica.com/event/Trail-of-Tears">Trail of Tears</a> – a forced march on which one in four Cherokees died – is a dark legacy of Worcester.</p>
<h2>Independence affirmed</h2>
<p>But today, Worcester v. Georgia also stands as a monument to both tribal sovereignty and judicial independence. At the height of the backlash against Brown v. Board of Education, Justice Hugo Black called Worcester one of Justice Marshall’s “most courageous and eloquent opinions,” which, “despite bitter criticism and the defiance of Georgia … <a href="https://supreme.justia.com/cases/federal/us/358/217/">came to be accepted as law.”</a></p>
<p>As Chief Justice John Roberts <a href="https://theconversation.com/roberts-rules-the-2-most-important-supreme-court-decisions-this-year-were-about-fair-elections-and-the-chief-justice-119708">reluctantly joins the progressive minority</a> on the court to reject political power grabs, he maintains Chief Justice Marshall’s legacy of judicial independence articulated in Worcester.</p>
<p>And as President Trump agrees reluctantly to respect the court – at least in the case of the census – he follows, in part, that long-ago legal victory of the Cherokee Nation. </p>
<p>[ <em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/120394/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bethany Berger does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>President Trump hinted that he would defy a Supreme Court ruling recently, though he later yielded to its authority. Andrew Jackson – Trump’s hero – likewise challenged the rule of law in the 1830s.Bethany Berger, Wallace Stevens Professor of Law, University of ConnecticutLicensed as Creative Commons – attribution, no derivatives.