Hi All,
It used to be good law that the 'actus reus' and 'mens rea' constituted
a crime, at least that was
what the casebooks published. The 'criminal act' and the 'guilty mind'
combined to render
clear the combination was unlawful.
The reasonable question to a law class is: What would be a 'criminal
act'? followed closely by
What constitutes a 'guilty mind'?
A topper would be: What would it take to investigate an individual, a
group, a cause or
persons you do not like? followed closely by: Would you arrest and
imprison a person or
persons with no evidence, or hint thereof , that a 'criminal act' or
'guilty mind' exists?
Arresting/imprisoning a person or persons because one wants to find out
if either or both
exists is what we have previously legally prohibited anyone from doing
(goes back to English
Common Law). Others we have roundly previously blasted when they did
this included the
Soviets.
Finding a 'criminal act' in absence of a 'guilty mind' under our
previous law did not
constitute a crime. This handled the case where a person unknowingly
performed some
act that was viewed by other as a 'criminal act', e.g., responding to
certain SPAM.
Refreshing a web page because 'everyone is doing' it hardly rises to the
level of a
'guilty mind'. One may pre-ordain that it does, but then they would be
placing themselves
well above centuries of legal scholars with more than adequate
credentials and
experience.
An approach 'There has only been an arrest' belongs in other countries
not the US.
An arrest carries with it a record that can literally destroy lives and
careers. A power to
arrest anyone at any time for any reason, whether you remember what it
was or not,
belonged to King George of England. Perhaps some history associated with the
Founding Fathers would be appropriate.
Our legal system is not the place to find out whether something is a
crime or not. The
terms 'Administration of Justice' and 'Judicial System' have other
definitions and
meanings.
A 'loose cannon' pops to mind as well.
My preferences are consistent with the Founding Fathers in legislation
and ideology
and extend to include the Bill of Rights. My hope is that history
remembers this
Country for these contributions and forgets other of more recent vintage.
Regards!
-Thomas Clark
Charles Miller wrote:
>
> On 07/01/2006, at 10:37 AM, zeno_at_cgisecurity.net wrote:
>
>> http://yro.slashdot.org/yro/06/01/06/2140227.shtml?tid=123&tid=95
>>
>> This is a sad, sad world.
>
>
> I can't help think that this is being blown all out of proportion by
> websites like Slashdot which thrive on those "authorities just don't
> get technology" headlines.
>
> Most crimes have two components: the actus reus (literally "guilty
> act"), which is the thing you do, and secondly the mental state
> behind the act, or mens rea ("guilty mind"). It is the mens rea that
> is the difference between sticking a knife in someone's throat with
> the intent to kill them, and sticking a knife in someone's throat
> with the intent to perform a tracheotomy.
>
> The felony in this case is a combination of a particular act --
> refreshing a webpage continuously and encouraging others to do so
> ("hold down F5...") -- and a very particular intention -- "..to help
> crash my school server". So rest assured, refreshing a webpage,
> linking to a page from Slashdot or just saying "sometimes the site
> doesn't load the first time so you might have to hit refresh" remain
> perfectly legal in the absence of a mens rea.
>
> You also have to keep in mind that there's only been an arrest so
> far, the case hasn't yet gone to trial.
>
> In our adversarial legal system, the _only_ way to find out if
> something is a crime or not in the absence of clear judicial
> precedent is to take it to court. Prosecutors can't go to a judge and
> say "tell us whether this is illegal or not", the only way you can
> get a definitive ruling on the correct interpretation of the criminal
> law is to arrest someone FIRST, and then put them through a trial
> (and if it's a really important point of law, a decade or so in the
> various courts of appeal). That's the prosecution's job, just as it
> is the defense's job to try to get the case thrown out as early as
> possible.
>
> C
>
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Received on Jan 09 2006
Intro
