Suppose that I approach a man to request that he commit a criminal act. Suppose that I hand him money sufficient to win his cooperation considering the value of his services and the risks involved. When the man does my bidding he surely commits a crime, but what about me and my culpability? I, too, am guilty of a crime (under this hypothetical) unless: I happen to be a pregnant woman; the crime is an unlawful abortion; and the opinion (of my culpability) comes from a presidential candidate.
If you are of a mind to “eat, drink, and be merry” on the eve of destruction, you may find some perverse entertainment value in this sad season of political campaigns. A notable moment of perverse entertainment occurred yesterday (3/30/16) in a “Town Hall Meeting” campaign stop when Donald Trump was ambushed (fairly or not) by a reporter and his hypothetical question. The premise of the hypothetical was: “What if abortion on demand were illegal?” In that case should there be punishment for women who obtain an unlawful abortion? Mr. Trump squirmed uncomfortably and finally uttered the thought that a woman should face some punishment for breaking the law. I do not advocate the overturning of Roe v. Wade. Unless and until that precedent of constitutional law is overturned, elective abortions will remain legal. If Roe v. Wade is overturned, the authority to outlaw abortion will rest with the state legislatures and (possibly) Congress, but not the president. Accordingly, the question to Trump was inane and undeserving of an answer.
Though it may have been entertaining to watch Donald Trump sweat like Marco Rubio, the real fun began with the backlash from every other known presidential candidate and Trump’s awkward retraction.
The campaigns of Clinton, Sanders, Cruz, and Kasich were quick to condemn Trump’s “blunder” (the political term for accidentally telling the truth). It seems that the Democratic contenders would punish no one for an unlawful abortion while the Republican contenders (including Trump) would gladly reserve punishment for the doctor performing the procedure. Here is the point for the Republican candidates to heed. If you are afraid to punish a woman for having an unlawful abortion, you lack the moral standing to punish the doctor. In maintaining that you would punish the doctor but spare the woman, you expose yourselves as the pandering hypocrites that you are.
In mitigation, it can be fairly said that presidential candidates did not originate the spectacle of hypocrisy in the criminal law. The unrepentant trailblazers in that field are the legislatures (state and federal) and, to a lesser extent, those who exercise prosecutorial discretion. A relevant example of criminal law hypocrisy comes from the offense of invasion of privacy (for violation of a protective order) as found at IC 35-46-1-15.1. Many people (mostly men) are prosecuted for invasion of privacy for violation of a protective order. Many of these defendants claim (to no avail) that the contact was excused by the invitation of the protected person. Case law holds that an invitation from the protected person is not a defense, meaning that such an invitation from a protected person to her “ex” is an invitation to commit a crime. Yet how many protected persons (mostly women) are charged with accomplice liability for inviting the “ex” to commit a crime? The answer is that I have never heard of any prosecution of that sort, and I doubt that there have been any such prosecutions in Indiana.
Another example of criminal law hypocrisy resides in our drug laws and the continuing “war on drugs.” Although the possession of controlled substances in small quantities remains (generally) illegal, it seems fashionable for the criminal justice system to coddle the user while vilifying the seller. Let’s review. A buyer approaches a man and asks him to commit a crime, sweetening the deal with money. How, then, is the buyer less culpable than the seller? From another angle the point is the de facto or de jure decriminalization of small quantities of recreational drugs (used by consenting adults) is incomplete so long as the sellers (enabled with buyers’ cash) are punished harshly.
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