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The Abuse Excuse: One Size Fits All?


By James Ottavio Castagnera - United States


(for any comments, please contact Brian Risman, Publisher of The Law Journal UK)


         Perhaps it’s Clarence Darrow’s fault.  The famous trial attorney, best known for the Scopes Monkey Trial immortalized in “Inherit the Wind,” also represented the thrill killers Leopold and Loeb.  That 1924 trial inspired at least four feature films: Alfred Hitchcock’s “Rope” (1948), “Compulsion” with Orson Welles in the Darrow role (1959),  the kinky “Swoon” (1992), and most recently “Murder by Numbers” (2002).  Called the crime of the century at the time of the trial, the murder of teenaged Bobby Franks by two wealthy college boys in Chicago has fascinated us down the decades.


        Realizing that no jury would find his two privileged and brilliant clients not guilty by reason of insanity, Darrow entered a “guilty” plea on the capital crimes of kidnapping and murder.  He then mounted a three-month-long hearing before the trial judge, known to be a softy, for mitigation of the sentence.  A dizzying succession of psychiatrists and other experts painted a picture of two disturbed young men who had been ignored by their parents and placed at the tender mercies of nannies who engaged them in sex games.  Summing up this weird array of witnesses, Darrow made one of his most famous assertions:


      “Why did they kill little Bobby Franks?  Not for money, not for spite, not for hate. They killed him as they might kill a spider or a fly, for the experience. They killed him because they were made that way. Because somewhere in the infinite processes that go to the making up of the boy or the man something slipped, and those unfortunate lads sit here hated, despised, outcasts, with the community shouting for their blood.”


          As a defense attorney, Darrow was a genius.  His argument is one-size-fits-all.


          “Why did President Bill Clinton engage in sexual relations with Monica Lewinsky?  He did it as he might open his fly, for the experience.”


          “Why did New Jersey Governor Jim McGreevey appoint his gay Israeli lover to a key homeland security post?  Because he was made that way.”


           The once-disgraced Governor McGreevey is well on his way to reconstruction (as the Chinese Communists used to term it).  Earlier this year he published a mea culpa memoir.  In his 2004 resignation speech qua leap from the closet, he proclaimed, “I am a gay American.”  The press, of course, had a field day. The May 2006 book brings onto the light of the printed page his sordid peccadilloes from his personal perspective.  The whole debacle was the result, he writes, of his agonizing effort to juggle a “man’s man” image, via strip clubs and pub crawls with his cronies, with his clandestine gay love affair.  Poor media-abused Jimmy… his publisher has reportedly consoled him to the tune of a $500,000 advance on sales.


           Now former-Congressman Mark Foley has joined the queue for his turn.  Having recently resigned in disgrace from the U.S. Congress, following disclosure of sexually explicit emails sent by him to teenaged Congressional Pages, Foley was reportedly under consideration by the U.S. Justice Department for related criminal charges.  Once, ironically, the chair of a House committee dealing with Internet predators, his downfall looked like it might bring the Republican ascendancy to an end in the November mid-term elections.


      Two weeks ago his attorney released a claim that Foley, between ages 13 and 15, was abused by a clergyman.  How convenient for Mr. Foley that he was raised Roman Catholic.  By now the media have persuaded most of America that every Catholic priest for the past 50 years was a sex fiend.  Poor little Mark… those salacious instant messages weren’t his fault at all.  The prelate made him do it.


          In 1994 Harvard law professor Alan Dershowitz, best known for the book and film “Reversal of Fortune,” published The Abuse Excuse… and Other Cop-Outs, Sob Stories and Evasions of Responsibility.  Since its publication the book has spawned no major motion picture.  But perhaps it should.  Or perhaps a new TV series awaits discovery in its pages.  Says Dershowitz, “From the Menendez brothers to Lorena Bobbitt, more and more Americans accused of violent crimes are admitting to the charges -- but arguing that they shouldn't be held legally responsible. The reason: They're victims -- of an abusive parent, a violent spouse, a traumatic experience, society at large, or anything else -- who struck back at a real or perceived oppressor. And they couldn't help themselves.”


       I wonder what Darrow, who died in 1938, would make of this state of affairs?  He doubted the existence of free will.  However, he didn’t attempt to obtain an acquittal for Nathan Leopold and Dicky Loeb.  He only argued, successfully, to save them from the hangman’s noose.  His clients received life sentences.  I hope he wouldn’t endorse the abuse excuse as a “Get Out of Jail Free” card.


      Rather, I hope he would recognize that the whole of our criminal law is based upon the belief that all but the truly insane can see the difference between right and wrong and have sufficient self control to choose the former over the latter.


      Replace that principle with a one-size-fits-all alibi and we might just as well tear down our courthouses and replace them with clinics.  Hopefully, even you lawyer-haters out there don’t endorse that.


(Jim Castagnera, a Philadelphia lawyer and writer, is the Associate Provost & Associate Counsel for Academic Affairs at Rider University, Princeton/Lawrenceville, New Jersey, USA)    


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