TRANSCRIPT
Wickedness, Evil and Law – Dr Penny Crofts
Dr. Crofts: I'm Dr. Penny Crofts from the Faculty of Law, UTS. David: Penny your research is a about many things, what's it major theme? Dr. Crofts: I focused particularly on legal constructions of wickedness. My central theory is that wickedness is not something that exists out there, it's something that we as a society construct and law is one discourse among many that tells us right from wrong, good from evil, and so I look at how the law constructs wickedness. David: What does the poison apple have to do with wickedness? Tell me that story. Dr. Crofts: There's a 16th century case called Saunders that we still use as an authority in contemporary criminal law and this man called Saunders wanted to kill his wife because, and it says in the case note, he had been seduced by the devil so he'd fallen in love with another woman and so he got an apple, roasted it and poisoned it and then gave it to his wife to kill her. She didn't know it was poisoned and she gave it to their child and he said, "Are apple's good for children?" She basically said, "Of course they are," and the child ate the apple and died. He was judged with murder and there was this difficulty because he said, "I didn't want to murder my child I wanted to murder my wife," and so we regard it as a really an important case in contemporary criminal law because it introduced the notion of transferred malice. If you want to kill one person and you shoot at them and you accidentally missed then your malice is transferred and you can be charged with murder for the other person. David: In a sense then, the actual, kind of what? The evil goes through the apple? Dr. Crofts: Well, this is the interesting thing because one thing I noticed when I look at treatise writers between the 16th and 18th century, so these were people who basically were trying to organize and summarize the law. Every single treatise writer referred to the apple and I thought this is really weird. It's not just about intention there's more going on here about why Saunders was wicked. He was TRANSCRIPT: WICKEDNESS, EVIL AND LAW – DR PENNY CROFTS
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wicked in part because there was this incredible horror at using poison at the time and it was also … a really sneaky thing to do. There's this whole idea that you could kill people if you killed in an honorable way but it was dishonorable to be [inaudible 00:02:22],so hiding in the bushes, poisoning would always be regarded as particularly wicked at that time. Whereas if you come up to someone and you go, "I'm angry at you, you stole my sheep," and say you have a fight then that would be a fair fight and would be honorable and that would not be regarded as being as wicked as killing by ambush or killing by poison. There's one treatise writer in particular who just obsessed over all the different ways you could kill someone with poison so it was this great fear but then on top of that the mention of the ... They're quite obsessed by the apple and they don't talk about it being a roasted apple, they only talk about it being an apple which I thought was quite interesting as well. To give you some idea, treatise writers tended not to refer to cases they tended to refer to each other but not to cases. This is really weird that all the treatise writers talk about this case and almost all of them talk about the apple and so I was looking at it and when you think of an apple and you think of wickedness, you think if Adam and Eve. What I think treatise writers were trying to do at this time was to construct a persuasive model of wickedness. This idea that wickedness would be caught by criminal law. They didn't want to settle on one definition of what it meant to be wicked because sometimes if you intended to kill a person it would be wicked and sometimes it wouldn't and sometimes a man poisoning they said was always wicked. They didn't like poisoning and causing someone's death was bad in on of itself because you were taking a life from God but then in addition you've got this apple popping up. I think that they were ... it was reference also to Adam and Eve and that association of the apple with wickedness and this persuasion that wickedness was something that could be moved around, it could be moved from person to person. David: But today Adam and Eve, I mean, do we still worry about that in court? People talking about Adam and Eve and apples? Dr. Crofts: Well, the way, I mean treatise writers didn't try and disrupt the Adam and Eve story but they drew upon it as basically saying this is something that criminal law had ... Unfortunately, there is evil in the world and criminal law must respond to it because of Adam and Eve. TRANSCRIPT: WICKEDNESS, EVIL AND LAW – DR PENNY CROFTS
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Whenever I tell people, modern people about this case and the apple they always think of Adam and Eve but in addition they also think of Snow White. Snow White came after the 16th century case but for us it's one of the classics as well, and what's interesting in Adam and Eve and Snow White is that the women are wicked. It's the women who are the problem. What's interesting about this case is almost all the treatise writer’s record that the wife was disobedient. That the husband had told her, "Don't give the apple to the kid," and she still did, so it's almost like it’s her fault that the child had died and they actually spend some time explaining why she couldn't be found guilty even though she caused the death. What I thought was really interesting is there's this developing fear around this time that wickedness would escape the law. They weren't concerned about innocent men being found guilty they were concerned that wickedness escaping the law. You have this wife who gave the apple to the child unknowingly and was disobedient and that was called petty treason if you would ... if a wife was disobedient to her husband that was petty treason. She was offending against structures at that time. It was petty treason, if you killed them, sorry. Disobedience wasn't petty treason but there were these structures of obedience but you also had the woman, the other woman. We have no idea if she loved Saunders or if she had encouraged this or if it was a completely unrequited passion but in the case note she's described as a devil but neither her nor the wife are charged with criminal offenses. You've got this underlying message about women in particular escaping criminal responsibility and in contemporary criminal law we talked about that as the dark figure of crime. David: So, we've got crime as evil kind of being passed via objects, apples and that kind of stuff and then somehow it becomes the woman's problem? Dr. Crofts: I think that that really ... the apple's quite interesting because it's quite free floating like it moves from one person to another but then in addition you've got this question if of who should be regarded wicked? Who should be regarded as responsible? It's a big question what does it mean to be wicked? And we still don't answer that. TRANSCRIPT: WICKEDNESS, EVIL AND LAW – DR PENNY CROFTS
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David: Even after all this time? Dr. Crofts: I actually think we've got worst rather than better. I think in contemporary criminal law the dominant account of wickedness is intentional wrongdoing and this reflects -­‐ David: But what does that mean? Dr. Crofts: It means that you want to ... I focus on murder, so I'll keep talking about it on murder but it means that you want, you intend to kill someone or you recognize the risk that you're going to kill someone. It's a cognitive account of wickedness and it reflects our understandings of wickedness in everyday life as well. If someone ... if you're meeting someone at a restaurant and they don't turn up and then you ring them and go, "Where are you?" They say, "Oh, I'm so sorry I forgot." You'll excuse them whereas if you ring them and go, "Where are you?" And they go, "Haha! I wanted to keep you waiting. That was my plan." You would think that they weren't very nice and that they were ... that this was a bad thing, so we tend to focus on intention in contemporary criminal law. You actually have cases saying people weren't to be found guilty unless they have [inaudible 00:08:28] on. Sometimes that is really important, sometimes that intention is really important but the problem is this is a really thin account of wickedness in contemporary criminal law. We find it really difficult to explain, for example, what if that person always stands you up and they always forget you? You would start to be a bit cranky at them so the issue there is that we're not capturing all the ways in which you can be bad in criminal law. We're also not reflecting all the things ... all the ways in which criminal law constructs wickedness. Yes, there's this focus on intention but for example, in compulsion defenses like self-­‐defense, duress, and necessity where you basically said, "I was forced to do this." What you're basically saying is, "Yes, I intended to kill the person but I didn't want to." That's an emotional account of wickedness. You also have all these other offenses which are the ones that most affects us in daily life like strict liability offenses like speeding. It doesn't matter if you know whether you're speeding or not what matters is that you were speeding. So, if an officer pulls you aside and you go, "Oh, I'm really sorry I had no idea," you're still TRANSCRIPT: WICKEDNESS, EVIL AND LAW – DR PENNY CROFTS
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guilty, really criminal law is all about whether someone is bad enough to justify punishment and the problem is that we avoid that discussion of what it means to be wicked. What originally got me interested in this research was the case of Lavender. David: Tell me that Lavender. Dr. Crofts: Lavender was this case where this guy was working at a sand mine and some kids came, four kids came on to the property and he was driving a front hand loader with limited visibility. He went very slowly and he decided that he would drive the front end loader at the kids to frighten them off the land mine but it's not the land mine, the mine. That they shouldn't be there so he would drive the front end loader at them to frighten them away. So, he drove the front end loader at them and two of the kids, he could see two of the kids in the distance but the other two kids hid behind some shruberry and unfortunately he drove over the bushes and killed one of the children. He was charged with manslaughter by criminal negligence. There was this big discussion and because the central element of manslaughter by criminal negligence is that you have to be wickedly negligent or you can talk about it as being grossly negligent, criminally negligent but ultimately its wickedness. It went to the news of what's called Court of Criminal Appeal and what I thought was particularly fascinating because criminal law has been talking about good and bad, mostly bad, for centuries, but the guys at the Criminal Court of Appeal, and they were three different judges who had three different arguments about what it meant to be wicked. One of them basically said, "Wickedness is whatever the law says wickedness is. It doesn't really matter." It's almost like a semantic game and this ... I found this quite a concerning model of law because it basically removes values and norms, lowers this closed system and values are whatever the laws says the values are. This judge actually thought wickedness should probably be removed as an [inaudible 00:12:00] from criminal law. The second judge said, "No, no, no, you're wrong wickedness is integral to criminal law but you can only be wicked if you have intentional knowledge." This is a classic TRANSCRIPT: WICKEDNESS, EVIL AND LAW – DR PENNY CROFTS
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subjective model of wickedness. He thought that Lavender should not be found guilty because he didn't have intentional knowledge. Then the third judge said, "No, no, no, there are different accounts of wickedness. One account of wickedness is intentional wrongdoing but another account of wickedness is an absence of care, a lack of care and that's what we associate with negligence that you fail to care." What I really love about this model of wickedness is that it returned us to classic account if wickedness, like an Aristotle in account of wickedness, where you don't assume intentional knowledge. What you're looking at is almost a balance on whether you have excess or lack and so what you're focus ... an example of someone who would be regarded as wicked who didn't necessarily have intention if you believe it would be Eichmann who sent Jews to their death on trains. He said, "I ... I didn't really want to kill any Jews I just wanted to be really good at my job." Being … wanting to be really at your job isn't only a positive thing but in this situation it's this absence of balance, it's this excessive ambition and the failure to care for human life and that what makes Eichmann wicked. It's the same with Lavender that he wanted to frighten them off the property but he failed to exercise care. He failed to worry about human life in that situation so that we as a society would say, "Well, that's wicked in that situation." Then he went on appeal to the High Court. The High Court on the transcript were like, "Wickedness. How fascinating," and then they just left that question to the side they didn't really deal with it. So, why my research is important because we have a judiciary and legal theorists who don't really talk about a central project of criminal law which is wickedness. We have cases like Lavender where they can't articulate why Lavender should or should not be found guilty. They ended up finding him guilty but they couldn't express it so what I'm trying to do us provide a philosophical account of what kinds of models of wickedness are available and what are the cause and benefits of particular models of wickedness. David: Which is your favorite then? Dr. Crofts: Well, I think that there's lots of different types. The intentional wrongdoing, I think, is important but I'm trying to address the lack of focus on that sort of death, classic account of wickedness of an absence of goodness, the lack of care. It's a TRANSCRIPT: WICKEDNESS, EVIL AND LAW – DR PENNY CROFTS
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beautiful model of wickedness and I think it's a really important model of wickedness in contemporary life where people have failed to worry about other people, to think about other people, to care for other people. TRANSCRIPT: WICKEDNESS, EVIL AND LAW – DR PENNY CROFTS
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