Saturday, February 01, 2003

Criminal responsibility in asymmetric relationships

My cue for returning to a topic that’s becoming a hobby horse of mine – though I’m calling it my hobby pony, for now – is this article:

Maybe it’s just me, but it appears that Tiffany Moss is about to take a big rap for a small crime. The smallness here is not just in the maximum amount of money she stood to gain ($20,000), but also in the number of other essential roles in the scam (the carpark procurer, the “lucky” high roller, and the hidden-camera woman – three other people – at an absolute minimum) – and the fact that none of these have been charged, due to an apparent lack of evidence.

Evidence law, combining as it does both substance and procedure, is a difficult beast to argue with. Conspiracy, and criminal responsibility in two-or-more pax criminal endeavours, are more user-friendly areas of discussion and mastery. To start with the obvious quip – yes, it is indeed legally possible for Ms Moss to have taken part in an effective conspiracy of one.

Legally possible, yes, but hardly usual – nor carrying much of that gut-feeling sense of the fair and reasonable. Unfortunately, conspiracy and criminal responsibility law has only one main defence able to be used in cases of asymmetric relationships between conspirators/co-criminals, and this defence – duress – is so archaic as to be practically useless in modern application.

To illustrate: my opinion is that someone who agrees to a $20,000 fee for a part in perpetrating a million-dollar plus fraud is a person who is deeply ambivalent about having any involvement in the first place. Divvying up the proceeds of crime is not, of course, enforceable in contract law, which is all the more reason for co-criminals to be robustly commercial in their terms. In any other type of transaction, Ms Moss would quite likely be entitled to equitable relief (= monetary damages) because of the grossly
uncommercial terms that she had, for reasons that would be fleshed-out in the judicial process, agreed to. Legally, equitable relief has galloped way ahead of the defence of duress because equity is quite prepared to look into the minutiae of the parties' power relationships, especially vis a vis economic power comparisons.

Instead of any considered approach along such lines, Ms Moss’s modesty of gain (both actual and possible/contemplated) is somehow transferred into a simple, naked dereliction of duty, or in Judge Graeme Crossley’s words:

"Her criminality is to open the gate to commit a crime of that or even greater proportion. As soon as she agrees to do it, the risk of enormous loss on behalf of the casino . . . should be immediately apparent."

No, Judge Crossley. “Opening the gate” is a menial task, whether done metaphorically, to effect a crime, or literally, to allow egress through a farm. Tiffany Moss was a skilled-but-menial worker, on $30k a year (2003 rates of pay for Crown Casino croupiers; no tips). Of course Ms Moss would have realized the “risk of enormous loss [to] the casino”, but that was their risk, not hers – a junior employee is not an insurer for their employer. And as for her own risk, Ms Moss may have justly and reasonably thought that in view of the modest prize pool nominated, her wager-in-crime would be concominantly small.

For some of my earlier thoughts on this topic, in the particular contexts of the American boy/man co-criminal cases of Malvo/Muhammad and Chavis/King, see my comment posted on Tim Dunlop’s blog:

Note also the one concession, other than duress, the criminal law makes in these scenarios for "coercion" – defined as:

"pressure, whether in the form of threats or in any other form, sufficient to cause a woman of ordinary good character and normal firmness of mind, placed in the circumstances in which the woman was placed (including the degree of dependence, whether economic or otherwise, of the woman on her husband), to conduct herself in the manner charged."

- s 336 Crimes Act (1958) Vic

A sexist legal relic, insulting to everyone in its current formulation, but containing a useful core concept – coercion in asymmetric relationships – that needs urgent modernisation.

Comments: Post a Comment

<< Home

This page is powered by Blogger. Isn't yours?