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Law of the Game on Joystiq: Let the punishment fit the crime


Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

We've be hearing a lot about the Thai cabbie killing lately and how it was (or wasn't) caused by Grand Theft Auto. In the wake of that tragic murder, there have been two major groups of outcries. The first has been the call to regulate games; one we have heard all too often. The other has been a call to revise criminal penalties; one which is not only new, but speaks to the core theory behind criminal law: the theory of punishment. Criminal law theory is something that is universal in all of our criminal codes, but isn't often discussed. It's this "theoretical" approach that we'll look at today. You may agree or disagree with my particular thoughts on the theory of criminal law, but it's more important for everyone to understand a theoretical approach to criminal law so that we can come to our own conclusions about true "justice."

The concept of criminal law starts with some basic political philosophy. In order to have a society, there has to be a set of rules by which that society operates. Whether you want to view this as the social contract in a Locke/Hobbes/Rousseau manner or through some other philosophical lens, the basic need for rules and order in a society is more or less the same. This need for rules gives rise to the concept of the law, and one of those concepts is the boundaries of behavior that stray into what we, as a society, feel need to be punished. This is the basis for all criminal law, be it a crime against a person or a crime against property.

Once you've placed theoretical constraints on acceptable behavior, you have to decide what are acceptable punishments. There have been, over time, many theories on which punishment is based. One of the oldest is athe classic "eye for an eye," but more modern interpretations have attempted to balance the idea of actual punishment with the idea of deterrence, the concept that the threat of punishment will keep many from committing crimes altogether.

There is also the question of whom to punish and to what degree should all involved parties be punished. Remember, the actual criminal actor is not always the only one punished. This is the basis behind accomplice charges, among other criminal penalties that involve far more complex issues of mitigating and aggravating circumstances, or particular factors that make the punishment more or less severe. Which brings us back to Thailand and two particular thoughts I've seen presented with respect to game-related violence: games as a mitigating or aggravating factor; and liability for game manufacturers for crimes that copy games.

"Both of these ideas border on lunacy."

Both of these ideas border on lunacy. First, games as an aggravating or mitigating factor in deciding punishment seems to be a loss. Does it make sense to punish a gamer more because he or she killed someone in a way based on a game? Of course not. The fact that the perpetrator is a gamer doesn't make the victim any less dead, nor does it make the crime any different from any other murder. So there's no benefit to giving the perpetrator an extra 40 years because they acted out a game. From the opposite approach, should a gamer be able to claim that the game made them do it? I say this is equally pointless unless it is tied to some concrete mental illness that would otherwise give rise to a potential insanity defense. If you can tell right from wrong (generally the standard for insanity), exposure to a particular game doesn't make right any less right or wrong any less wrong; it's just an excuse to attempt to reduce punishment.

The secondary thought, applying liability to game manufacturers for "copycat" crimes committed by those who play their games is a blatant contradiction to free speech in the US. That's not to say it can't happen in other countries, but the law is relatively clear in the US. In fact, the Supreme Court specifically invalidated hate crime laws that were in conflict with free speech in R. A. V. v. City of St. Paul. More importantly, speech has traditionally only been limited in the case where the speech itself presents imminent lawless action, such as yelling "Fire!" in a crowded theater, or consists of "fighting words," or words likely to instigate a fight. To think about this from another perspective, if game makers are allowed to be held accountable for the actions of players, then why not movie makers? Or authors? Catcher in the Rye has been tied to several people who have committed criminal acts, and yet not only is it still sold freely, to my knowledge no one has ever brought suit against J. D. Salinger, the publisher, or the book seller.

More importantly, these two ideas tie together. If you don't believe that the perpetrator should be able to claim the "game made him do it," then why should the game's maker be liable? On the contrary, if the game maker isn't responsible for what people do with their game, then does it really matter if the game motivated the crime in someone who can tell right from wrong? Doesn't the idea of free speech in and of itself demand some personal responsibility from those who are in their right mind?

These finer points of criminal theory are ones you have to resolve within your own mind, not just with respect to these proposed game laws but with respect to all criminal laws. It's a legal area that few people analyze thoroughly, but everyone should have thought about as it should shape your personal and political actions. After all, if you disagree with a candidate's particular theory of criminal punishment, shouldn't that be a factor in deciding whether to vote for that person, just as you would likely consider the candidate's stance on video games in making an educated decision on whom to vote for? Hopefully much of the fervor will die down as more time passes from the tragic murder in Thailand, and as that dies down so will the hasty calls to revise the criminal system based on games.

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc.,, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.

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