Ian’s Legal Fact of the Week 9/2/13: Mayhem!

While the word mayhem is often used in the context of describing chaos, confusion, rioting and disorder, that is neither its original meaning nor its legal definition. The etymology of mayhem has its roots in Anglo-Norman French, derived from Old French “mahaignier” and Anglo-Norman “maihem”, and legally speaking it is defined as an offence characterized by “willfully maiming or crippling a person”. Under Norman law, and in the centuries that followed, it was narrowly defined so that the maiming in question had to adversely impact the victim’s ability to defend himself in combat; it could encompass either dismemberment or the permanent disabling of a body part necessary for fighting. As such, destroying an opponent’s eye or arm would constitute mayhem, but cutting off an ear, for example, did not. It was originally not an indictable felony and such acts were commonly prosecuted as trespasses or misdemeanors until they were made statutory felonies during the reign of Henry IV in 1403 (the Maiming Act, 5 Henry IV. c. 5). By the 17th century the offence had become much expansive, and included any act of disfigurement, most notably under the 1697 case of Fetter v. Beale when the King’s Bench ruled that loss of part of one’s skull (which most of us would classify as a pretty grievous injury) could fall under the rubric of mayhem.

In the United States, mayhem is a statutory felony in a few states, including California (under Cal. Pen. Code Sec. 203) which states that “[e]very person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.” Injuries sustained must be permanent in order to sustain a charge of mayhem, and as this statutory provision indicates, it also encompasses disfigurement. In many jurisdictions, these acts could be (and are) charged as aggravated assault, which is commonly defined as attempting to cause serious bodily injury; or knowingly, recklessly or purposefully causing serious bodily injury. A number of other offences are related to this charge, including assault with a deadly weapon, assault with intent to murder,  and aggravated assault with a motor vehicle.


Organ Donor Trusts and Durable Powers of Attorney for Organ Donation: New Twists on the Living Trust and Living Will

My first legal publication, written as a student note for the Probate Law Journal in 1995, this article discussed two theoretical vehicles for promoting organ donation: the creation of a inter vivos organ trust, modeled after a pour-over trust or an unfunded life insurance trust; and utilizing a durable power of attorney for health care to allow agents to make organ donation decisions in accordance with the principal’s wishes following his or her death.

13:1 Probate Law Journal 29-62 (1995)

Ian’s Legal Fact of the Week 4/22/13: The Origins of ‘On the Lam’

Events of this past week in Boston prompted me to look into the origins of an expression I heard quite often on the news: on the lam. Meaning to be a fugitive from the law, the etymology of this idiomatic expression is fairly murky although it is most often thought to be urban slang from the 1920s commonly in use by members of the criminal underworld. The Random House Historical Dictionary of American Slang traces it back to the mid-19th century, but it appears related to Old Norse lemja, meaning ‘to depart hastily’. H.L. Mencken thought its origins came from Elizabethan England, where it meant the same thing as beating it, an idiom still in use meaning ‘to run away’ and immortalized in a song by Michael Jackson. Its origins seems much less clear than vamoose, which appeared in the early 19th century and is derived from the Spanish vamos (let us go) — but this expression does not necessarily mean one is ‘running away from the law’, and conjures up images of grizzled 1840s gold prospectors rather than CNN.

What’s In A Name? That [Who] We Call Rose….

In the U.S., convention regarding name-changes after marriage has changed dramatically in recent decades–but not in the way you might think: a thirty-five year long longitudinal study showed that the 1990s was the high-water mark with respect to women preserving their maiden names (now often referred to as birth names), when nearly one-quarter of married women did so. That number has continued to slowly decline to approximately 18% today. Well-educated, high-earning women are much more likely to retain their names, largely for professional reasons. While taking the husbands’ name is still by far the most popular choice, some spouses conjoin their names into one hyphenated last name. In some rare cases, spouses have created entirely new last names following marriage that both use. Changing one’s name after marriage is not especially difficult in the U.S. (at least relative to some other countries), although it typically involves expenses, paperwork, legal proceedings, and the publication of legal notices in newspapers.  In Quebec, a civil law jurisdiction, the norm is quite different. There, under a law passed in 1981, a married woman not only does not automatically take her husband’s last name, but she is not permitted to do so, even if she applies for an official name change. Such a situation shocked a newlywed Ontario-born wife several years ago, who realized she ran afoul of a law that was designed to enshrine gender equality. The Quebec civil registrar also weighs-in on baby names, contesting and sometimes rejecting names that it feels will cause the children ridicule. Recent names that have been contested include Avalanche. But ‘la belle province’ is far from exceptional in this regard., as numerous other jurisdictions also have baby-naming laws. For example, Sweden promulgated the Naming Law in 1982, designed to prevent non-aristocratic families from using noble names, but it was modified over time to also encompass names that would cause ridicule. The law stipulates that “[f]irst names shall not be approved if they can cause offense or can be supposed to cause discomfort for the one using it, or names which for some obvious reason are not suitable as a first name”. In recent years, they have rejected Elvis, Superman, Metallica, and A. New Zealand’s 1995 law does not allow any names that “might cause offence to a reasonable person” or is “unreasonably long…or without adequte justificiation” or which resembles an official title or rank. They have rejected names such as Fish and Chips, 4Real, Adolf Hitler, Sex Fruit, and Satan. For reasons known only to themselves, they have apparently approved the baby name Number 16 Bus Shelter — probably best not to think why the parents were inspired to name the child thuslyand also Benson and Hedges (naturally, for twins: can corporate sponsorship be far behind?).  Germany’s name laws require that a child’s gender be identifiable by their first name, and that it not subject them to ridicule, and these rules are enforced by the Bureau of Vital Statistics. Matti was rejected a few years ago because it did not indicate gender, although Nemo was approved for a baby boy (thereby pleasing the Walt Disney Company, one assumes). Perhaps nowhere is name regulation taken more seriously than in Denmark. In a culture where uniqueness is not necessarily embraced as virtue, the government has helpfully complied a list of 7,000 approved names for girls and boys from which parents may choose (the list is heavy on West European and English names, although in recent years more ethnic names have been added, recognizing growing immigration from outside of Europe). Deviations from this list require approval by both the Ministry of Family and Consumer Affairs and the Ministry of Ecclesiastical Affairs, which routinely rejects names that are considered gender-ambiguous, frivolous or unusual. Names that did not meet with official sanction in recent years include Monkey, Bebop and Anus. The law was also designed to make changing last names difficult, apparently to mollify aristocratic families who worried their names would be usurped by commoners. So, what’s in a name? Depends on who you’re asking–and where.

And a topical update: earlier this month a Child Support judge in Newport, Tennessee changed a boy’s first name from “Messiah” to “Martin”, saying that it is a “title that has been earned by only one person and “that one person is Jesus Christ.”


Ian’s Legal Fact of the Week 4/15/13: Estate and Inheritance Taxes

An estate tax is levied before an estate is distributed to heirs, while an inheritance tax is levied against the beneficiaries after it is distributed. The federal government recently raised the estate tax exemption to $5.25 million, but 21 states also have an estate tax — and the exemption amount is typically much lower (such as $675,000 in Rhode Island, and $1M in New York). Eight states levy an inheritance tax instead, while Maryland and New Jersey impose both estate and inheritance taxes. Many retirees move to states that have neither of these taxes, such as Florida, Arizona and Texas.

Ian’s Legal Fact of the Week 4/8/13: Alienation of Affection

One of the most common 19th century civil suits was for alienation of affection, awarding damages to litigants whose marriages disintegrated due to the actions of a third party. In order for a plaintiff to prevail, he or she had to show that the marriage had been a loving one, that the relationship was alienated (i.e., destroyed), and that the defendant was responsible for this alienation. While long since abolished in most states, in 2010 a record $9 million judgment was awarded in North Carolina against the defendant who had seduced the plaintiff’s husband.


Ian’s Legal Fact of the Week 3/25/13: Workers’ Compensation (or Lack Thereof)

Historically it was very difficult for employees injured on the job to recover damages, based on three concepts in labor law: assumption of risk, which stated that a worker had knowingly assumed the risks of working and was always free to work elsewhere; contributory negligence, which held that if a worker was in any way responsible for his or her injuries, than the employer could not be held liable; and the fellow servant rule, which stated that employers were not responsible for an employee’s negligence that caused harm to another. For more discussion, visit my earlier blog entry on this subject.

Ian’s Legal Fact of the Week 3/18/13: Legal Fiction

A legal fiction is a fact that is assumed or created by courts in order to apply a legal rule. Most often a feature of common law systems, perhaps the best-known (and one of the most controversial) such fictions in the U.S. is the concept of corporate personhood. A long-standing rule was that only persons could sue or be sued; with the growth of corporations after the Industrial Revolution a legal fiction was created that corporations were also persons, thereby allowing corporations to be held liable for their debts. For another example, see my blog entry on adultery law.

Ian’s Legal Fact of the Week 3/4/13: An Eye For An Eye

An eye for an eye and a tooth for a tooth is a theory of retributive justice, focusing on retaliation rather than compensating the victim. This principle first appeared in the Babylonian Code of Hammurabi (hundreds of years earlier than similar references in the Old Testament), which also enumerated concepts such as the presumption of innocence. While the Code’s provisions often seem harsh, it was intended to provide measured punishment for offenses, so as to discourage blood feuds and excessive punishments.

‘A’ is for Adultery

Adultery! Everyone knows what it means–and rarely do we think of adultery having to do much with law, except possibly in divorce actions. To some, it probably conjures up Nathaniel Hawthorne’s The Scarlet Letter, published in 1850, with its themes of sin, adultery, and Puritan law in 17th century Massachusetts. While in some countries in the world adultery is still punishable, even by death, in the Western world we tend to think of it as a private matter, not having much to do with law at all– particularly as no-fault divorces are now so common. But did you know that in the U.S. it can still be illegal?

Indeed, various states still have adultery on the books as a punishable offense. The penalties can differ widely: in Michigan it is punishable by up to life in prison (no, that’s not a typo!), while in Maryland it makes the offender subject to a $10 fine. But perhaps more surprising to many, even in that most-liberal-leaning state that I call home —  Massachusetts — adultery is still a crime. Rarely prosecuted, it is true, but a crime nonetheless. Mass General Laws chapter 272 section 14 (MGL c.272, s. 14) governs this act of passion, providing in one breathless (excuse the pun!?!) sentence that: “[a] married person who has sexual intercourse with a person not his spouse or an unmarried person who has sexual intercourse with a married person shall be guilty of adultery and shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than five hundred dollars.” Perhaps the law, even today, still reflects our Puritan heritage?

While the law has been challenged on constitutional grounds related to privacy, the Supreme Judicial Court of Massachusetts has upheld the statute’s constitutionality in Commonwealth v. Stowell in 1983.  Is the statute enforced? Rarely. So rarely, in fact, that the Massachusetts Appeals Court had, two years earlier, mentioned that it had “fallen in a very comprehensive desuetude.” Desuetude is an interesting concept in itself; much more fundamental to civil law systems than to Anglo-American common law, it essentially holds that when a law is routinely flouted, unenforced, ignored or forgotten, it ceases to be a law. In the U.S., a law that has fallen into desuetude is generally no less a law for it– under the judicial concept that the legislative branch has the power to amend or repeal the law, if it so chooses, and that this does not properly fall under the judiciary’s purview.

So, in reality, while adultery is still a crime on the books in Massachusetts, it is most unlikely to be prosecuted, and if it were, arguably would not pass constitutional muster under the 2003 Supreme Court case of Lawrence v. Texas (which struck down anti-sodomy laws on the grounds of substantive due process enshrined in the 14th Amendment). But what of its role in divorce? Intuitively, we know that adultery is often a factor leading to divorces, and historically was one of the main legal grounds for such an action. In Massachusetts, like all other states, divorce can be granted on the basis of ‘no-fault’, meaning that the party filing for the divorce need not make a showing that the other’s actions precipitated the breakdown of the marriage. This, of course, was not always the case: divorce was traditionally adversarial, where the petitioning spouse had to allege malfeasance. Most commonly, this involved adultery, cruelty, abandonment, and the like. In the absence of such grounds, couples were forced to create “legal fictions” in order to petition for a divorce decree; these included such things as collusive adultery (in which the couple would arrange for one spouse, usually the wife, to return home at a pre-appointed time, to discover her husband in the arms of a mistress, conveniently obtained for the purpose). The use of legal fictions, it was claimed by reformers, was leading to the very real practice of perjury and was injurious to the administration of justice, resulting in growing movements in the 1930s onwards to adopt a no-fault rule.

In Massachusetts, divorces are governed by Chapter 208 of the General Laws, which enumerates eight grounds for divorce: adultery, impotency, “utter desertion” for one year, refusal of support, cruelty, drug or alcohol addiction, incarceration in a penal institution for five years or more, and the no-fault ground of irretrievable breakdown of the marriage.  Alleging these other seven at-fault grounds obviously make the proceedings adversarial — not necessary with a no-fault claim of irretrievable breakdown — and as such no-fault divorces tend to be much simpler, faster, less expensive, and more popular. Of the at-fault claims, allegations of abuse are the most common. With respect to adultery, a wronged spouse might wish to pursue this claim for other reasons, but pragmatically the main reason would be that a claim of adultery allows one to waive the one-year Massachusetts residency requirement before filing for divorce.

Incidentally– to switch continents and eras for a moment– fans of Downton Abbey who are following the storyline involving the London newspaper editor, Gregson, and his romancing of Lady Edith (despite the fact that he has a living wife, who is institutionalized for mental illness) will note that mental illness is not enumerated above as grounds for divorce. At one point, Gregron bitterly points out that her condition is not grounds for divorce despite the fact that she does not recognize him. While this may seem counter-intuitive, this is generally correct: insanity was treated for grounds only if present at the time of the marriage, not if it developed subsequently (this latter scenario being covered by the vows ‘for better and for worse, in sickness and in health’.) Even under Massachusetts law, incarceration does not include institutionalization for mental illness– and in fact insanity only enters matrimonial law as a defense against an at-fault divorce petition: on the grounds that an insane person is not responsible for his or her actions.

Anyway, gentle reader–marriages don’t always end in divorce, adultery or insanity–although sometimes it just seems that way! Hope you found this interesting, though.

Ian’s Legal Fact of the Week 2/18/13: The Meaning of ‘Rap’

The word rap – referring originally to a mild form of rebuke (such as to rap one’s knuckles) – by the late 18th century referred to punishment or blame for serious offences. By the early 19th century, it entered American slang in a variety of expressions related to criminal justice, such as: to get the rap (to get the blame), to take the rap (to accept the blame), bum rap (to be blamed even if innocent), beat the rap (to avoid conviction), and rap sheet (a police record of arrests and convictions).