This article has been written by Oishika Banerji of Amity Law School Kolkata. This article discusses the statute of limitation, which is a legislation that establishes the maximum amount of time that parties have after the alleged offence to file a lawsuit, on sexual assault with respect to the United States.
It has been published by Rachit Garg.
Introduction
A state has a limited amount of time after a crime is committed to file charges against the offender. Criminal statutes of limitations are the laws that specify this time limit. It can be beneficial to have a better awareness of these laws and how they differ when high-profile cases of sexual violence continue to make headlines and survivors attempt to report crimes. A statute of limitations, in broad terms, is a deadline by which someone must submit a claim. The person who wants to make a claim loses their ability to do so once the deadline passes. A statute of limitations is the deadline by which the prosecutor must submit charges in a criminal case. In certain places, the statute starts to run when the offense was committed or when it was discovered. In some states, the statute begins to run once the victim contacts the police about the incident. This article discusses the concept of a statute of limitations in its length and breadth with respect to the United States of America.
What is a criminal statute of limitations
Each state has statutes of limitations, which specify how long the state has to file criminal charges against a suspect. A statute of limitations can be compared to a timer; once the allotted amount of time has passed, the culprit cannot be held accountable for their actions. States, situations, and types of crimes all have different statutes of limitations. The laws of each state often answer the following issues:
When does the countdown begin or what must occur for the statute of limitations to apply?
What causes the statute of limitations to “toll” or what causes the clock to stop?
What keeps the time ticking or guarantees that some victims, including youngsters, have enough time to come forward and report the crime?
Application and creation of statutes of limitation
State policymakers drafted and adopted the statutes of limitations. This implies that even though the crimes are identical, each state has its own set of statute of limitations laws. For instance, there is no time restriction on filing charges for rape in Alaska, thus, prosecutors can always do so, regardless of how much time has elapsed. However, the statute of limitations for rape in Massachusetts is 15 years. The prosecutor, who represents the state in criminal prosecutions, must decide which statute of limitations is applicable in a certain instance before bringing charges against an alleged offender. Prosecutors take into account some of the following issues when doing this:
What kind of crime took place
Prosecutors often have more time to charge defendants when the incident is more serious, such as when it is a felony sex crime rather than a misdemeanor.
When was the crime committed
The limitation period of a statute of limitations typically starts ticking as soon as the offense is committed. In other circumstances, such as when the victim is a juvenile, they might not become aware of the incident’s criminal nature until much later in life. In some situations, the clock may begin when the offense was said to have happened rather than when it really happened.
Who was responsible for the crime
When deciding which offense and statute of limitations apply, prosecutors will take into account the details of the victim, the suspected offender, and any relationships between them. Which statute of limitations is applicable can vary depending on a number of variables, including age or membership in a “vulnerable group” (such as a child or a person with a disability).
What exclusions are there
If DNA proof is considered to be an exclusion, the state may suspend the statute of limitations while searching the CODIS national DNA database for a match to the suspected DNA. Further, if it is found that a weapon has been used in the commission of the crime , it can have an impact on the statute of limitations as well.
Why do statutes of limitations exist
Statutes of limitations were established partly to prevent convictions based on “unreliable witness testimony,” such as recollections of incidents that took place years ago. DNA, audio or video recordings, emails, messages, and other digital communication are recent evidence that doesn’t disappear over time. These types of evidence are crucial in the investigation and prosecution of sexual violence offenses. The physical, emotional, and psychological impacts of sexual violence as well as the reasons why a victim might not report the crime right away have also grown to be better understood by society. States’ laws have changed as our understanding of these crimes and their consequences has advanced.
For a variety of reasons, states may enact statutes of limitations. A statute might be in place, for instance, because it would be challenging to prosecute a case after a certain amount of time has passed. Evidence could disappear or deteriorate. There might not be enough room to store the evidence from unsolved cases. From a philosophical standpoint, states have the right to enact statutes of limitations to prevent criminals from spending the rest of their lives in an unfavorable situation. The potential defendant can eventually move past the period during which he or she would be obligated to make amends for their misdeeds.
Scope of the statute of limitations in the United States
The federal system and the 50 states that make up the United States have different statutes of limitations. Generalizations can be made, such as the fact that murder does not fall under the statute of limitations and that, with the exception of a small number of offenses, most crimes are subject to statutes that call for swift prosecution. States and Congress have recently extended the statutes of limitations for two types of crimes, namely, sex offenses involving children and general sex offenses. News stories concerning clergy and other authority figures abusing children on a regular basis have led to calls for the repeal or extension of statutes of limitations across the nation. Similar to this, reports of powerful men abusing their position to force sex from women in subordinate roles have sparked comparable extensions of the statutes of limitations for crimes involving sex. These changes have occurred in both liberal and conservative states across the country.
As the name suggests, statutes are the only thing that can restrict the government’s power to file criminal charges. The common law system that the United States inherited from England did not have them. Despite the United States’ adoption of English common law, the First Congress passed legislation establishing particular statutes of limitations. By law, capital offense cases may be brought at any moment in the federal system. A catch-all clause was established by Congress that gives federal crimes a five-year statute of limitations. Congress has on occasion established special statutes of limitations for a given offense. For instance, there is a 20-year statute of limitations on art theft and a 10-year statute of limitations on arson.
Depending on specific policy concerns for additional crimes or situations that would make detection challenging, the pattern varies. There are presently two significant provisions in federal law that extended the statute of limitations for child sex abuse prosecutions. One clause completely abolishes the statute of limitations in some situations of child sexual assault. Another clause permits charges to be filed as soon as possible after the expiration of 10 years or the victim’s life. The limitation period in each state differs significantly. The majority of states do not have a statute of limitations for the offense of murder. The duration of the statutes of limitations for various offenses varies between states. For instance, Alaska has two tiers of offenses, with some having a five-year statute of limitations and others having a ten-year one.
The standard statute of limitations in Arizona is seven years. Depending on the crime, California sets the sentences at six or three years. There is no statute of limitations for the most serious offenses in Connecticut, which is a patchwork state. The statute of limitations is five years for the majority of other offenses. The statute of limitations for sexual assault, abuse, or exploitation is thirty years. The statute of limitations in situations of child abuse begins to run five years after the victim contacts the police. The majority of jurisdictions acknowledge a number of equitable exceptions to the stricter deadlines imposed by statutes of limitations. If a criminal eludes police or otherwise thwarts their reasonable efforts to find him, the statute of limitations may be tolled.
A typical federal law states that “Any person fleeing from justice shall not be subject to the operation of any statute of limitations.” Some jurisdictions, for instance, demand evidence that the criminal was operating or stagnant. Other laws extend the statute of limitations while the perpetrator is out of state, regardless of how long that absence lasts.
The main justifications for time limits center on widely held beliefs that prompt investigation and prosecution ensure that a conviction or acquittal is a reliable outcome and not the result of a hazy memory or insufficient evidence; that old wrongs shouldn’t be brought back to life except in rare instances of concealing the offense or the identity of the offender, and that community security and economy in the allocation of enforcement resources demand that time limits be imposed.
What is the statute of limitations for rape in the United States
The alleged offense must meet the criteria for rape before the statute of limitations can be declared to be in effect. Every state defines a particular offense differently. Rape was characterized in common law as forcible, illegal sexual contact with a person without their consent. Rape was not considered to include encounters between spouses under this concept. Furthermore, this term frequently calls for a man to be the offender. While some legal systems continue to use this concept, others have changed it to refer to coerced sexual activity that does not specifically ask for penetration. According to the Model Penal Code, 1962, rape is defined as a sexual activity involving a man using force or threatening to use force against a woman. There are various degrees of rape, each of which has a distinct punishment. The statute of limitations for sexual assault could be shorter than that for rape.
Ten years or less
A ten-year or shorter statute of limitations is common in many jurisdictions. The time period of ten years is applicable for the statute of limitations effective in California, Colorado, Illinois, Iowa, Montana, Texas, and Washington. The statute in Maine is eight years. While the statute of limitations is six years in Oregon, Vermont, Arkansas, New Hampshire, and Hawaii, it is seven years in North Dakota. Florida has a four-year statute, while Connecticut has a five-year statute. The three-year statute of limitations in Minnesota is considered to be the shortest among those discussed above.
More than ten years
There are a handful of states that have statutes of limitations that are longer than ten years. For instance, Pennsylvania’s statute of limitations is twelve years. Some types of rape are subject to fifteen-year statutes of limitations in Georgia, Massachusetts, and Washington, D.C. The statute of limitations in Ohio is 20 years.
DNA exception
Many of the states that do have a statute of limitations on rape have an exemption for DNA evidence. If a match is discovered in the DNA database after the general law expires, for instance, some states may have a general statute with an exception.
Other exceptions
Along with the exceptions that have been discussed above, there might be further relevant exceptions. For instance, if a minor was the victim, the statute of limitations might be extended. Similarly, if the suspect deliberately avoids prosecution or moves to another state, certain jurisdictions do not start tolling the period for the statute.
No limit
For some types of rape or all rape offenses, many states do not have a statute of limitations. Alabama, Alaska, Arizona, Delaware, Idaho, Kansas, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, Wisconsin, and Wyoming are among such states.
Exceptions to the statute of limitation in the United States
There are some exceptions to the statute of limitations. Unless there is a special code section that increases the statute of limitations for that particular offense, federal law states that the standard 5-year statute of limitations applies in every situation. There is no statute of limitations for offenses punishable by death penalty, such as capital murder (18 USC 3281). Additionally, there is no statute of limitations for terrorism, whether it results in death, significant bodily harm, or injury (18 USC 3286). There is no statute of limitations for sexual offenses committed against minors (18 USC 3283).
The statute of limitations varies for certain white-collar offenses. For instance, 26 USC 6531 governs a violation of the Internal Revenue Service. Charges for tax offenses, including tax evasion, as defined by 26 USC 7201, and failure to submit a tax return, as defined by 26 USC 7203, must be filed within six years of the offense, according to federal tax law. The statute of limitations has strict requirements for major fraud in the United States. According to 18 USC 1031, a substantial fraud charge against the US must involve at least $ 1,000,000. A person who willfully defrauds the federal government in connection with any grant, contract, loan, federal assistance, etc. is punishable by a 10-year sentence in federal prison. Major fraud in the United States is subject to a seven-year statute of limitations from the time the offense was committed.
On the United States Attorney’s request, the court has occasionally extended the statute of limitations. Here are a few instances:
The first accusations were dropped (18 USC 3288). After the statute of limitations expires, federal prosecutors have an additional six months to file new accusations.
The crime was committed abroad, or the proof is on international soil (18 USC 3292).
Federal law raises the statute of limitations for the following immigration violations from five to ten years.
Use forged or fake citizenship documents (18 USC 1423).
As a petitioner, declarant, applicant, or witness in a citizenship or naturalization process, assuming another person’s identity (18 USC 1424).
Illegally obtaining citizenship or naturalization (18 USC 1425).
Manufacture, sale, distribution, or duplication of citizenship or naturalization documents that are fake, fraudulent, or falsified (18 USC 1426).
Sale of citizenship or naturalization documents that are otherwise valid (18 USC 1427).
Not returning a revoked naturalization certificate (18 USC 1428).
Receiving commissions or gifts in exchange for obtaining loans (18 USC 215).
Theft, embezzlement, or improper use by a bank employee or officer (18 USC 656).
Stealing money from a bank that receives federal funding (18 USC 657).
Compared to other offenses, conspiracy crimes have a highly distinct statute of limitations. For instance, the statute of limitations operates when the last act that was a part of the conspiracy was carried out in cases of conspiracies brought under 18 USC 371 involving a conspiracy to commit a federal crime or to defraud the United States. The same holds true for narcotics trafficking under 21 USC 846 and schemes to cheat the federal government by fabricating claims under 18 USC 286.
Criminal statute of limitations for rape in Washington State
The statute of limitations for a rape claim can be 10 years, 20 years, or even without a time limit, depending on the specifics of the claimed conduct.
You cannot be charged with third-degree rape if the alleged offense occurred more than ten years ago, according to the law. Third-degree rape is a class C felony. The third-degree rape of a child is exempt from the 10-year limit.
Charges of rape in the first or second degree have a 20-year statute of limitations after the alleged crime was committed. Charges of first- or second-degree rape of a victim who was under the age of 16 at the time of the alleged crime, or charges of first, second, or third-degree rape of a child, are exempt from the 20-year limit.
No matter how long has passed since the alleged commission, these accusations may be brought at any time after that point:
If the victim is younger than sixteen, it is considered first-degree rape.
If the victim is younger than sixteen, the crime is rape in the second degree.
Child rape in the first degree.
Child rape in the second degree.
A conviction for rape can be a Class A or Class C felony.
How long does it take to file a civil lawsuit in Washington State for rape damages
According to Washington law, anyone who accuses someone of the civil tort of rape or sexual assault must bring a lawsuit within two years after the alleged incident in order to seek monetary compensation from the accused. The complainant may permanently forfeit their ability to hold the defendant financially accountable when the deadline has passed. Rape can be classified both as a criminal offense and a tort. A “tort” involves civil litigation that is unrelated to any criminal proceedings.
Why there has been a call for abandoning statutes of limitation for sex and child sex offenses
The desire to extend statutes of limitations in numerous sex offense cases may be found in headlines almost anywhere. Prior to the #MeToo movement, the public was outraged by the 57 revelations of years of cover-ups involving child sexual abuse by Catholic priests and other persons in positions of authority. In the middle of the 1980s, allegations of sexual abuse by Catholic priests first appeared in the US. The 1990s saw the publication of the first books and articles about the abuse, which culminated in a Boston Globe newspaper series on its significance. These cases keep coming up with different themes; Church authorities frequently reassigned priests to other dioceses; they infrequently reported the abuse to authorities.
Suits against the Church have increased. These lawsuits were ultimately settled, which cost the Church millions of dollars. Church representatives frequently withheld information during discovery in an effort to protect the Church and its priests from criticism. Another strategy was to acknowledge the abuse scandal while trying to contain the harm. For example, Church officials claimed that just 1% of their priests worldwide were implicated in abuse as recently as 2008, years after the instances started to rise.
A grand jury in Pennsylvania released its findings regarding abuse in the state’s churches in 2018. The grand jury discovered more than 1000 allegations of abuse by nearly 300 priests in six of Pennsylvania’s eight dioceses in its 884-page report. According to the research, there were probably hundreds more cases that were not recorded. The state only pursued two criminal prosecutions despite evident criminal offenses. That was true since most offenses were no longer punishable by law. The Pennsylvania grand jury suggested the abolition of the statute of limitations for criminal offenses as one of its recommendations.
In a report released in 2019, the Associated Press stated that some 1,700 priests, monks, and other Church members who had been accused of sexual assault were “living beneath the radar,” unobserved by Church or law enforcement officials. Many of those adults held positions of trust or power and interacted with young people.
In 2020, the COVID-19 pandemic has forced a number of stories off the top page. But the Boy Scout sex abuse controversy was another major news event in 2020. Although the issue has been going on for a while, it only recently gained steam. Significant jury decisions in civil lawsuits eventually prompted the organization to file for Chapter 11 bankruptcy protection in federal court in February 2020. By November 2020, more than 60,000 men had filed lawsuits against the group, and many more victims had opted out of the legal process. Similar to the Catholic Church, Boy Scout leaders spent years refuting allegations of abuse.
Bill Cosby’s alleged crimes have brought global attention to the challenges encountered by women who have been abused by powerful men. Despite more than 50 women coming forward to accuse Cosby, prosecutors were only just able to move forward with charges against him because the statute of limitations had almost run out on the allegations that were ultimately brought. Jeffrey Epstein was another well-known individual facing numerous sexual abuse charges before he committed suicide in custody. Epstein would have been able to evade prosecution on state law crimes but would have been liable to federal charges because of their extended statutes of limitations, similar to Weinstein, Boy Scout leaders, and priests.
Policymakers have put out a number of justifications to support lengthening or eliminating statutes of limitations in cases involving sex and child sex offenses, supported by victim rights organizations. Here are a few of the justifications as expressed by proponents of victims’ rights. For instance, “the act of rape doesn’t change with time – just because a certain amount of time has gone doesn’t mean that someone is less accountable,” according to a spokeswoman for the Rape, Abuse, and Incest National Network (RAINN). Some criminals commit crimes repeatedly, endangering the public’s safety. We don’t want to praise a rapist for being skilled at avoiding detection, as the RAINN spokeswoman said.
Statute of limitations, in the opinion of many who support victims of sexual and child sex abuse, “are a painful hindrance to justice.” Some supporters claim that, contrary to what is typically taught in schools, “our brains are actually built to hang on to the details of stressful and traumatic experiences.” Other legislative improvements are also mentioned by victim’s rights organizations as a result of their good impact on the legislation. The majority of jurisdictions now permit victim impact statements and evidence to be used in criminal cases during the sentencing phase.
Cases with DNA evidence are given special consideration by some legislators. A state may maintain its statutes of limitations for other crimes, but if DNA evidence is present, it may make an exemption. These initiatives frequently coexist with laws that extended the statute of limitations in civil lawsuits. As previously said, in other cases, such as with the Boy Scouts, an extension of the statute of limitations has sparked a wave of lawsuit files that have driven the organization into bankruptcy. Some proponents of victims’ rights contend that the reality warrants extending or eliminating the criminal statute of limitations.
Adult Survivors Act, 2022 : elimination of Statute of Limitations on Sexual Assault for one year in New York
With the signing of the Adult Survivors Act (the “ASA”) by Governor Hochul, New York has made a significant step toward giving victims of sexual abuse a means of pursuing legal action against their abusers and employers that was previously barred by the statute of limitations and/or notice of claim requirements. The Adult Survivors Act gives sexual assault survivors a year-long “lookback window” to file a claim. It is sponsored by State Senator Brad Hoylman and Assemblymember Linda Rosenthal. Advocates claim that the old sexual assault rules were incompatible with how traumatized victims cope with their experiences. Many are afraid of reprisals, violence, or being shunned. Some people discover they were assaulted several years after the fact. By allowing timely claims to be filed, the ASA allows survivors to pursue claims that would otherwise be denied due to statutes of limitations or other notice requirements.
Additionally, these accusations can now be brought in court because of the recent passing of the Federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. The ASA will give survivors a one-year opportunity to bring previously forbidden claims relating to a sexual offense, starting six months after the ASA’s effective date. Therefore, survivors will have until about November 2023 to submit their claims. Additionally, the ASA gives these cases trial preference and instructs the Chief Administrator of the courts to issue guidelines that will allow the revived cases to be decided quickly.
The New York Penal Law’s (Article 130) provisions on sex offenses and crimes of incest cover about 20 offenses that are subject to the ASA. These offenses include rape, forced contact, and sexual abuse. The state of New York has only recently taken this precaution to give victims of sexual abuse some time to process before deciding the best course of action. The Child Victims Act, which was passed in 2019 and offers a comparable lookback period and permits survivors of childhood sexual abuse to make civil claims up until the age of 55, served as the inspiration for the ASA. The state increased the statute of limitations that year from three to twenty years.
Similar laws have recently been established in a number of states around the nation, including New Jersey, where over a 24-month period beginning in December 2019, about a thousand complaints were filed. The ASA’s extensive application means that survivors will also be able to file claims against organizations or companies that would have been accountable had the claims been made in a timely manner. As a result, employers may be identified as defendants in the litigation in situations where the sexual abuse happened at work or was connected to the employment relationship.
Institutions and employers from all over New York will undoubtedly be named as defendants given the scope of the New York Human Rights Law and the resulting potential liability on employers for the actions of their employees, as individual defendants are not always able to pay settlements and/or judgments. Practically speaking, the Child Victims Act did not provide this outcome because the young victims were not working at the time of their victimization due to their age. While the accused, their employers, and institutions will undoubtedly gripe about the difficulties of defending cases of sexual assault that took place decades ago under their watch, the victim will still be required to prove their case and face the same evidentiary challenges.
Views on the Adult Survivors Act, 2022
The truthfulness of the accusers versus the accused, the accuracy of the medical records, and any eyewitnesses who were alerted to the sexual assault just before it occurred will all be crucial factors in many of these cases. It is also anticipated that the court proceedings would include expert testimony on how sexual assault victims process their experiences and the reasons they might delay reporting the assault for a long time. In the event that their claims are validated, victims will have the ability to pursue all available remedies, including monetary, non-monetary, and punitive damages. Victims in situations governed by the New York Human Rights Law will now be eligible to request reimbursement for their legal expenses.
The existing legal framework in New York state courts also makes it possible for victims to file their claims using the alias “Jane Doe” and avoid immediately disclosing their identities, though this is likely to be contested by the defendants and their employers. The legislation protecting victims of sexual assault moved slowly, but there was continual resistance. This is not the first time the ASA has been proposed, let alone approved by the State Senate with no opposition. Similar support was shown for the initial effort on June 3, 2021, but the Assembly did not even get to vote on the bill. That summer, sexual assault allegations against then-governor Andrew Cuomo made it impossible to avoid the subject in New York.
Advocate Marissa Hoechstetter conjectured that the choice may have been influenced by the growing controversy, while other participants claimed additional debate was just necessary. She said that if the law had been passed, the governor would have been compelled to sign it. The Adult Survivors Act must be advanced, as many survivors do not receive justice, according to Liz Roberts, CEO of Safe Horizons, the biggest victim services NGO in the United States and an organization that was instrumental in the struggle for the passing of the ASA. The ASA will thus restore the time stolen from survivors by their abusers.
Purpose of the Adult Survivors Act, 2022
The newly passed law gives victims a fighting shot at full recompense to make them whole, so safety is not the only intended benefit. The statute of limitations has significantly decreased victim compensation in previous assault cases. It will be simpler for victims to obtain adequate compensation for their suffering once the new provision is in effect.
While the passage of the Adult Survivors Act represents a victory for sexual abuse victims, it is unclear how many survivors will come forward and how juries will respond to their claims when considering whether to hold people and possibly their employers accountable for actions that took place decades ago. There are undoubtedly a lot of people who believed they could avoid being held responsible for their activities and who now have to think about being named in court and held accountable for them even though they happened a long time ago.
Whether or not there should be a time limit on cases of sexual assault and rape in state legislatures
Many state legislatures disagree on whether or not there should be a time limit on cases of rape and sexual assault. The deadline is usually extended for victims of child sexual abuse, even in states with stricter limitation windows. The majority of states also permit the “tolling” or halt of the statute of limitations in cases where DNA evidence is available. Some states have relatively lenient statutes of limitations that begin when the victim accepts they were sexually attacked (referred to as the “point of discovery”). In light of the #MeToo movement, which gave many rape and sexual assault victims the confidence to come forward and share their experiences years, or even decades, after the alleged assault, the debate over whether or not there should be a statute of limitations in cases of sex assault has gained momentum.
Arguments for a statute of limitations
Those who support a statute of limitations contend that it is reasonable to restrict the amount of time that can be spent pursuing legal action since crucial evidence is sometimes lost, witnesses might leave their positions, and memories of an incident can alter over time. They contend that pursuing legal action for a supposed sexual assault that took place so long ago based on out-of-date evidence is unfair to the accused, who can suffer mental, social, and financial hardship from such a severe accusation even if proven not guilty or accountable. Additionally, some people contend that the alleged offender shouldn’t face the prospect of criminal punishment while spending the remainder of their lives in “purgatory.” Instead, they ought to be permitted to proceed.
Arguments against a statute of limitations
On the other hand, those who are against a statute of limitations contend that a sexual assault has substantial, long-lasting impacts on a victim’s physical, emotional, and psychological health. If recovery is ever possible, victims frequently need years or even decades of therapy to process their trauma. It would give victims more time to acquire the assistance they require before seeking justice if the statute of limitations for these heinous crimes was extended or eliminated entirely. Additionally, some victims wait until the threat has passed before reporting sexual assault because they are afraid to do so because the abuser has a position of power. They contend that placing a temporal restriction on abusers’ ability to continue abusing others while getting away with previous transgressions is necessary.
States’ view on extension or elimination of the statute of limitations for sexual assault charges
Several states have recently approved or proposed legislation to lengthen or abolish the statute of limitations for sexual assault claims:
Arkansas: Arkansas increased the age limit for legal liability for child sex abuse from 18 to 55 in May 2021. Any victim could file a lawsuit for a period of two years under the statute.
California: A Bill to completely repeal the state’s criminal statute of limitations on rape and other sexual felonies was signed into law by Governor Jerry Brown in 2016. Previously, there was a 10-year maximum for prosecution.
Colorado: A law repealing the statute of limitations for survivors of sexual assault in civil claims was approved by the state assembly in March 2021.
Lowa: Advocates are urging the state legislature to approve Senate File 572, which would do away with the statutes of limitations for both the criminal and civil cases of child sexual assault.
Louisiana: A Bill to increase the statute of limitations for child sexual assault from 10 years to 35 years was unanimously approved by the state House in May 2021. The Senate will now review it.
Minnesota: The state legislature discussed a Bill to end Minnesota’s rape and other sex crimes statute of limitations in 2021, thereafter removing the statute of limitations on September 15, 2021.
Ohio: Two state lawmakers reintroduced a Bill to end the statute of limitations for both criminal and civil sex crimes in May 2021.
Oklahoma: The House Judiciary Committee approved House Bill 3024 in 2020, which seeks to eliminate the statute of limitations for sex crimes involving children.
Oregon: The statute of limitations for some sex crimes in Oregon was increased from 6 to 12 years in 2016. As of January 1, 2016, if a survivor of child abuse (under 18) wishes to file a claim, they may do so at any point before turning 30.
Texas: The civil statute of limitations for child sexual abuse doubled to 30 years in 2019. House Bill 2071, which would repeal the civil statute of limitations for young rape and sexual assault victims, is being considered by the Texas legislature since 2021.
The federal government has recently taken steps to regulate how rape kits are gathered and stored in addition to state rules. The Sexual-Assault Survivor’s Bill of Rights Act of 2016 was passed by Congress, and it mandates that all states maintain rape kits for 20 years or until the rape statute of limitations in that state has run its course, whichever comes first.
Conclusion
The time frames that determine whether you can be sued in civil court or face criminal charges are known as statutes of limitations. You cannot file a lawsuit after the deadline has passed; however, you may ask for the matter to be dismissed. In criminal or civil cases when the statute of limitations has expired, the court lacks jurisdiction. The defense that the statute of limitations has expired is one that can be used to refute a criminal charge, but if it is not used before a trial, the defendant has likely renounced their right to do so. It is necessary to demonstrate that the criminal complaint or indictment was submitted after the statute of limitations’ five-year period had passed in order to effectively invoke this defense
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This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses the due process of law in the United States, its role in law-making, the judiciary’s reflection on it and the current status in the developed nation of the US.
It has been published by Rachit Garg.
Introduction
Due process of law is a fundamental legal principle that guarantees individuals the right to have their disputes and grievances heard and resolved in a fair and impartial manner. It is an essential element of the American legal system and has been a part of the US Constitution since its inception. The Fifth Amendment to the US Constitution has directed the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment which was ratified in 1868, has used the same words, calling it as the Due Process Clause, which describes legal obligation for the states to abide by. These words provide an assurance to the citizens that all levels of the American government must operate within the law thereby providing fair procedures. The Supreme Court of the United States while deciding on the case of Arnett v. Kennedy (1974) had opined that the Fourteenth Amendment’s Due Process Clause imposes similar procedure due process restrictions upon the states as the Fifth Amendment in respect to the federal government. Generally speaking, the due process procedure requires state actors to provide procedural safeguards before they deprive any individual of their life, liberty, or property associated interest. The due process clause can only be applicable if the mentioned interests are said to be at stake.
In this blog article, we will explore the origins of due process of law in the US, from the early history of the due process clause to the application of the Bill of Rights to the states and beyond. We will also examine the concept of procedural due process, as well as the notion of substantive due process, and explore the landmark case of Medina v. California (1992).
Defining due process of law
Due process of law is a legal principle that is derived from the Fifth Amendment to the United States Constitution. It states that no person shall be deprived of life, liberty, or property without due process of law. This means that the government must provide individuals with a fair and impartial hearing and process before it can take away any of their rights or privileges. It is an essential element of the US legal system and serves to protect individuals from arbitrary and unjust government action. In the US, due process of law is divided into two distinct categories: procedural due process and substantive due process. Procedural due process refers to the procedures that must be followed in order for the government to take away an individual’s rights or privileges. This includes the right to a hearing, the right to be informed of the charges, the right to a fair and impartial trial, and the right to appeal.
Substantive due process, on the other hand, refers to the substantive rights and privileges that are protected by the government. This includes the rights to life, liberty, and property, as well as the right to privacy, freedom of speech, and freedom of religion, among others. Substantive due process has been interpreted over time to include things ranging from the right to work in an ordinary job, to that of marriage, raising children, etc. The ideal case of Lochner v. New York (1905) is where the Supreme Court of the United States discovered that a New York law that regulated working hours of bakers, was ultra vires the Constitution and thereby ruled that the public benefit of the law was not enough to justify the substantive due process right of the bakers to work under their own terms. It is necessary to note that although substantive due process is still invoked in several cases in present times, it does follow criticism.
History of the due process clause
The concept of due process of law has its roots in English common law and was first enshrined in the Magna Carta of 1215. This document, which was written by the English barons to limit the power of the monarchy, stated that “no free man shall be taken or imprisoned…unless by the lawful judgement of his peers or by the law of the land.” This phrase was later interpreted to mean that individuals must be given a fair hearing before they can be deprived of their rights or privileges.
Historically, the due process clause reflected the Magna Carta of Great Britain, in which King John had promised his noblemen that he would only be acting legally and everyone would be subjected to the ordinary processes (procedures) of law. While this promise echoed in the 13th century, Great Britain’s seventeenth century struggles surrounding political and legal regularity, alongside the strong insistence of the American colonies’ during the pre-Revolutionary period as the backdrop, led to an observance of regular legal order. The essence of due process of law is reflected in the government’s legally sound functioning. Every legal system should function with legality that is in a just and fair procedure and this being the sole commitment of the system it is embodied in the due process clause.
The fundamental trait of the due process clause is the promise it makes to the citizens to not deprive them of their right to life, liberty or property thereby vesting a legal duty on the government to maintain the same. It is noteworthy to mention that the government is not restricted to function according to the express operating statutes of the United States but can also function in a way it deems fit provided it is done in a fair and justified manner. The due process clause also signifies that any action that denies the process that is otherwise ‘due’ will ipso facto be termed as unconstitutional.
The Fourteenth Amendment to the US Constitution in light of due process of law
The Fourteenth Amendment to the US Constitution, which was ratified on July 9, 1868, granted citizenship to “all persons born or naturalized in the United States,” which was inclusive of former slaves who were recently freed. In addition to the same, the amendment also prohibited states from depriving any individual “life, liberty or property, without due process of law” or denying “any person who came under its jurisdiction the equal protection of the laws.” The principal father of the Fourteenth Amendment, John Armor Bingham was an Ohio Representative, who also served on the Joint Committee on Reconstruction.
It is ideal to mention that the congressional opponents who had argued against the Fourteenth Amendment were of the opinion that the discussed amendment would be responsible for undermining the legislative power of the states. On the contrary, Bingham was of the belief that appropriate interpretation of the amendment’s “privileges and immunities” clause would make it clear that it was the reflection of most of the rights already present in the first eight amendments of the Bill of Rights. Therefore, it was clear that the amendment required state governments to adhere to similar standards like that of the federal government in protecting the rights of their citizens. Alongside this, as an extension of support to the amendment before the Congress, the founding father had also ensured that the amendment was the fulfillment of the Constitution’s guaranteed right to enjoyment of life, liberty, and property.
The slaughter-house cases
The Slaughter-House Cases were a series of cases that were heard by the US Supreme Court which determined the extent to which the Fourteenth Amendment to the US Constitution could place limits on the legislative powers of the states. While the majority of the court attached a narrow interpretation to the amendment, it was Justice Stephen J. Field’s who dissented with an argument that the amendment safeguarded individuals from state legislation which infringed their “privileges and immunities”, which were guaranteed by the federal Constitution. Field’s dissenting opinion is generally viewed as a significant step towards the modern doctrine of substantive due process, which is a theory developed by the courts for defending those rights that are not explicitly mentioned in the Constitution.
The Miranda decision (1966)
In the case of Miranda v. Arizona(1966), Miranda was arrested at his home and was taken to the police custody where he was made to be identified by the complaining witness. Further interrogated by two police officers for over a period of two hours, Miranda was made to sign his written confession. At the trial, both the oral and written confessions were presented before the jury which resulted in Miranda being held guilty of kidnapping and rape and was therefore sentenced to 20-30 years imprisonment on each count. Miranda had further appealed before the Supreme Court of Arizona, where order was in accordance with the decision made by the trial court thereby concluding that Miranda’s constitutional rights were not violated in obtaining his confession and being used in the trial.
The opinion given by Chief Justice Earl Warren in the case of Miranda v. Arizona (1966) has remained a remarkable one. The opinion required police officials to make the arrested individual aware that the information collected about him, can be used by the government in the form of evidence, alongside the right to be silent and right to counsel, that are available to him. Viewing it as a requirement against the right against self-incrimination guaranteed by the Fifth Amendment to the US Constitution, Warren had provided his opinion. Warren had also recalled the trial of John Lilburne who was the seventeenth-century radical politician, in which Liburne contended that the freedom from compulsory self-incrimination be recognized as one of the fundamental rights of an English subject.
Procedural due process
Procedural due process refers to the procedures that must be followed in order for the government to take away an individual’s rights or privileges. This includes the right to a hearing, the right to be informed of the charges, the right to a fair and impartial trial, and the right to appeal. Procedural due process ensures that the government cannot take away an individual’s rights arbitrarily or without cause. In order to prevent individuals and their interests from being subjected to arbitrary actions of the government thereby putting both at stake, due process requires the procedures that help in application of laws to be handled evenly. Satisfying due process varies from one circumstance to that of the other. One of the prime considerations in the process of determining what procedure to follow so as to reflect abidance of due process, is to understand as to whether the government’s conduct in discussion is a part of a criminal or civil proceeding.
In the case of Medina v. California (1992), the court of law had held that the framework that is needed for an accurate analysis of criminal procedures in line with due process, is a thin inquiry into the nature of the procedure being followed so as to figure out whether it is offensive to the subject-matter of fundamental fairness or not. A balancing test that aids in evaluating the procedure chosen by the government to look into private interest infringement matters, is generally applied by courts in civil cases (Mathews v. Eldridge (1976)).
The instant in the case of Ballard v. Hunter (1907) reflects that the government does deprive individuals of their protected interest without helping in instituting judicial proceedings thereby walking away from application of due process. Such applications are common in both civil and criminal proceedings. In cases of administrative and executive proceedings, denial of due process is observed on the part of the government with them citing that such proceedings are not judicial in nature. The fact that even though such proceedings are not judicial in nature, they may satisfy the requirements of the ‘due process clause’, is generally ignored in these proceedings (as was seen in the case of McMillen v. Anderson (1877)). The due process clause does not mandate judicial review of agency proceedings or agency decisions, as was seen in the case of Moore v. Johnson (1978), where the preclusion of judicial review of decisions of the Veterans Administration regarding veterans’ benefits was upheld.
The decision made in the case of Carfer v. Caldwell (1906) stated that while separation of powers among the three branches of the federal government has been favored by the Constitution, states are said to be enjoying greater flexibility and have been vested with an implied power to determine the extent of separation of powers among the three organs. Therefore, the due process clause can be said to neither prohibit a state from being conferred with judicial responsibilities nor delegate legislative powers to the courts.
Substantive due process
Substantive due process refers to the substantive rights and privileges that are protected by the government. This includes the rights to life, liberty, and property, as well as the right to privacy, freedom of speech, and freedom of religion, among others. Substantive due process ensures that individuals are not deprived of their rights or privileges without a legitimate reason.
The landmark case of Dr. Thomas Bonham had knocked on the doors of the British Court of Common Pleas in 1610 and was heard by Chief Justice Edward Coke. The issue concerned a law that vested the London College of Physicians with the power to imprison anyone who was practicing medicine without a license. Justice Coke was of the opinion that the alleged law was void as it was against common right and reason. This landmark decision has been cited by several American jurists in cases where statutes were in conflict with fundamental laws of the land. This judgment is often held to be an antecedent for both the doctrine of substantive due process and judicial review.
The concept of substantive due process under American law is one of the controversial ones. This form of due process has been put to use in the present century to safeguard individual liberties. Although the concept of substantive due process remains translucent for judges of the US Supreme Court, they have stated that the word ‘liberty’ mentioned in the due process clause, vests fundamental right on the parents to have custody of their children (Santosky v. Krame (1982)). Thus, if one distinguishes between procedural and substantive due process, one can state that if the government feels the need to terminate parental custody (in reference to the above instance), it has to give notice and a hearing opportunity, before doing so, the same will be termed as procedural due process. Whereas, if the government has to terminate the custody, it has to provide compelling reasons that would be serving as an adequate justification for its decision-making, the same would constitute substantive due process.
Usage of substantive due process, initially used to protect economic liberties of individuals, is reflective in the landmark case of Lochner v. New York (1905). As we have talked about this case previously, it is ideal to state that in this case, the US Supreme Court had struck down a New York law that was made up to limit the maximum number of hours for which bakers could work. Observing that the freedom of contract was protected as a fundamental right under the term ‘liberty’ in the due process clause, the Apex Court declared the law to be ultra vires the Constitution.
Further, while deciding the case of Pierce v. Society of Sisters (1925), the Supreme Court declared an Oregon law that prohibited parochial school education as unconstitutional. The reasoning given by the Court for such decision was substantive due process but then after 1937, the same court had withdrawn itself from basing any decision on the ground of substantive due process, for the same being understood as ambiguous.
How can we know whether process is due, when it is due, and what procedures have to be followed
The fact that this heading deals with a substantial set of questions and has remained unanswered for long, tells us that the ‘due process’ concept is purely procedural. When it comes to the judiciary, denial of existing legislations or challenging of certain provisions, make them think beyond the codified procedure thereby throwing light on these questions. The Supreme Court of the United States has long struggled for interpret the substantial aspect of ‘due process’ but have not been able to come to a conclusion thereby limiting its reasoning to the general nature of the relationship between citizens and government.
Back in the 19th century, the actions of the government were simple and limited as the majority of the times it wished to deprive its citizens of life, liberty or property, it was done through criminal law. The Bill of Rights also laid down a few procedures that were to be abided by, for example, the right to a jury trial. The Supreme Court’s opinion in the case of Bi-Metallic Investment Co. v. State Board of Equalization (1915) is worth discussing for it stated that when it came to settling tax levels, it was only politics which was the reflection of citizen’s “power, immediate or remote, over those who make the rule”, that controlled the state’s action. In cases where the dispute surrounded the taxpayer’s individual liability, the taxpayer’ right to hearing (which involved the right to support his allegations by means of contentious arguments). This had by default kept rooms for the state to decide the procedure it is going to provide but restricted states from misusing the same.
The afore-mentioned case established that the Constitution was not in need of ‘due process’ for the purpose of laying down laws. Instead, the ‘due process clause’ comes into application when a state acts against an individual on individualistic grounds thereby imposing threat on their fundamentally secured and codified rights. Individualistic ground signifies certain traits that are exclusive to a particular individual and differs from another individual. The ‘due process clause’ therefore does not govern how a state regulates student discipline in high schools; instead, it looks into how the state applies such regulations to individual students when they are said to be in violation of such regulation. For example, if a student is caught cheating in a state-wide competitive examination, he is said to be in violation of the established regulation concerning that and comes with the purview of ‘due process clause’.
Although the student will be held for violation, another aspect that needs to be looked into is whether alleging the student of cheating by the school amounts to deprivation of his life, liberty and property rights. The ‘due process clause’ shall only come into application if state action is involved, for in case private schools take disciplinary actions against their students, due process clause will not be invoked.
When process is said to be due
In several of its earlier decisions, the Supreme Court of the United States seemed to hint on the fact that only when the guaranteed property rights were at stake, urgent hearings could be subject to postponement in order to make them follow provisional and irreversible action of the government. Scenarios changed after 1970 following the decision in the case of Goldberg v. Kelly (1970). This was a case that arose out of a welfare program that was administered by the state. The court of law in this case had observed that before a state took any action to terminate the benefits of the welfare recipients, it stood mandatory for such a state to provide a hearing opportunity to the recipients, before a hearing officer, on grounds that due process clause required such a hearing to take place.
What procedures are said to be due
As we developed an idea as to when due process apply, there have been cases that have helped to determine the procedures that are said to be constitutionally due. This is a question that is typically raised in cases of criminal trials, where Bill of Rights might provide answers, in cases of civil trials and also administrative proceedings, which were invisible in the legal landscape even after a century of introduction of the due process clause. In the previously discussed case of Goldberg v. Kelly (1970), the court had answered our present issue in hand by stating that it is one of the key responsibilities of the state to provide room for hearing before a judicial officer, who has to be impartial, and which shall include:
The right to be provided with attorney’s help and aid.
The right to present evidence before the hearing officer.
The right to present oral arguments before the hearing officer.
The opportunity to examine and cross-examine witnesses appearing before the hearing officer.
Following this decision, many had raised arguments against the 1970 decision declaring the same to be divergent instead of being specific and therefore the US Supreme Court had to adopt a discriminating approach in recent times. The Court had noted that the process that will be ‘due’ for a student suspended from school for a considerable period will be different from that of a doctor who has been kept in deprivation of his license to practice medicine. Similarly, the ‘due’ of a process will differ from an accused individual to that of a person alleged to have committed theft. The conclusion that was reached from this observation is that whatever be the situation, there could be no prepared list of the procedures that are always said to be ‘due’. Therefore, what procedures are due cannot have a single uniform answer as what the Constitution requires would be an inevitable dependent upon a situation.
A method of stating as to what procedures are due was developed by a successor case named Mathews v. Eldridge (1976) in which the method discussed could be successful in helping lawyers present due process questions before the courts. Currently, the same approach is used for determining due procedures and resolving questions surrounding the same.
Due process beyond the Bill of Rights
The due process clause of the US Constitution does not only protect the rights listed in the Bill of Rights. This clause has been extended to protect a variety of other rights, including the right to privacy, the right to a fair trial, the right to equal protection under the law, and the right to procedural and substantive due process. This means that the government must provide individuals with a fair and impartial hearing and process before it can take away any of their rights or privileges.
Protection from police power and vagueness in laws
Due process of law also protects individuals from laws that are overly vague or that give the government too much power. Laws must be specific and clear so that individuals know what is expected of them and can act accordingly. Vague laws give the government too much discretion and can lead to arbitrary and unjust punishments.
It is ideal to note that the US Supreme Court had initiated a ‘rights revolution’ in order to initiate a new set of limitations on police searches and interrogations, in light of the dominant model of policing that was prevalent in large parts of the United States. In the notable case of Mapp v. Ohio (1961), the court of law extended exclusionary rule to the states thereby forbidding the usage of evidence obtained by means of illegal search and seizure, in trials. The court in the case of Escobedo v. Illinois (1964) went ahead to state that a suspected individual will be entitled to seek help from an attorney during interrogation by the police officials. Denial of this right will be viewed as a violation of constitutional rights which renders any statement that is made by the suspect inadmissible in the court of law. The decision made in the previously discussed case of Miranda v. Arizona (1966) stated that states are also required to make the suspect acknowledge his rights that are available before the police in cases of custodial interrogations.
The above discussed decisions have been responsible for directly affecting day-to-day investigative activities of police thereby helping in initiating professionalism among police officers. This initiative accelerated as departments reacted to their increased liability by raising recruitment standards along with improving legal training for officers, and also establishing procedures for investigating officers to abide by while moving ahead with arresting of suspects.
Equal protection before the law guaranteed by due process clause
The due process clause of the US Constitution also guarantees individuals the right to equal protection under the law. This means that all individuals must be treated equally and without discrimination. The government must provide equal justice to all individuals, regardless of race, gender, religion, or any other factor.
Equal protection represents the idea that it is not favorable for a government body to deny people equal protection of its governing laws. Therefore, it is the responsibility of the governing body to treat an individual in the same manner as others under similar conditions and circumstances. It is also necessary to acknowledge that a government is given allowance to discriminate against individuals, as long as such discrimination is in terms of equal protection clause. The due process clause of the Fifth Amendment requires the United States government to practice equal protection in terms of its everyday functioning. The equal protection clause as has been provided by the Fourteenth Amendment also requires states to practice equal protection while governing its citizens. Equal protection makes room for a state to be impartial while governing thereby not allowing the state to draw distinctions between individuals solely on irrelevant differences when it comes to fulfilling governmental objectives. Thus, to protect civil rights, the equal protection clause has an imperative role to play. The individuals also have the right to bring in a lawsuit against the state or the deferral government before the court of law if their guaranteed rights are infringed.
An analysis of the case of Medina v. California (1992)
The landmark case of Medina v. California (1992), is a prime example of the US Supreme Court applying the due process clause of the US Constitution to protect individual’s rights. As have already been explained and mentioned in this article previously, the case has received a valid discussion hereunder.
Facts of the case
Medina was held guilty of an alleged first-degree murder. On the basis of his pleading before the California Supreme Court, his motion for a fair hearing pursuant to the prevalent state law that forbidden unsound mind individuals to be tried or punished, was granted. The state law also placed burden on the petitioner to establish presumption of incompetence of the preponderance.
Judgment delivered by the US Supreme Court
Although Medina had defended his conduct, the jury who had empaneled for the competency hearing had established Medina to be competent to stand trial and thereby was convicted and sentenced to death. The US Supreme Court had affirmed the jury’s decision thus rejecting Medina’s claim that his right to due process was violated by the competency statute’s burden of proof and presumption.
Analysis of the judgment delivered by the US Supreme Court
It is necessary to note that the due process clause makes way for a state to require a defendant to face trial and bear the burden of proving preponderance, when claiming incompetence. It is ideal to note that there lies no historical basis that concludes that vesting the burden of proof on a criminal defendant in order to prove his incompetence, is in violation with due process. Further, the Court had reasoned that a state’s allocation of the burden of proof to an accused defendant, does not transgress the principle of fundamental fairness, going by the decision made in the case of Leland v. Oregon (1952), which had upheld a state’s right to place burden of proof on the defendant for pleading insanity and the same is not unconstitutional. Thus the decision made in our discussed case, clears the air that the judgment was fair and reasonable.
Conclusion
Due process of law is a fundamental legal principle that guarantees individuals the right to have their disputes and grievances heard and resolved in a fair and impartial manner. It is an essential element of the American legal system and has been a part of the US Constitution since its inception. This blog article has explored the origins of due process of law in the US, from the early history of the due process clause to the application of the Bill of Rights to the states and beyond. We have also examined the concept of procedural due process, as well as the notion of substantive due process, and explored the landmark case of Medina v. California (1992). Due process of law is a crucial element of our legal system and provides individuals with vital protections against arbitrary and unjust government action. It is essential that we continue to uphold this principle and ensure that individuals are provided with a fair and impartial hearing and process before their rights or privileges can be taken away.
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This article is written by Anvita Bhardwaj, a student pursuing B.A. LL.B. from Symbiosis Law School, NOIDA. In this article, the legality of verbal assault has been discussed. It entails a detailed explanation of what verbal assault is, the conditions required to prove it, and the defenses provided against it, among other aspects.
It has been published by Rachit Garg.
Introduction
Suppose you get into an altercation and the person starts to threaten you. The person claims that he will torture you, maim your limbs, take a gun, and empty it into your skull. This is known as “verbal assault.” We are well aware that verbal abuse is unethical and immoral. In this article, we will answer the question, “Is verbal assault illegal in the US?”
What is verbal assault
The term “verbal assault” refers to the use of offensive language directed at a person that is likely to enrage a reasonable person (for example: excessive taunting or teasing, bullying, or other verbal harassment); a bomb threat (or any similar threat) directed at a school building, other slanders; or the threat of an immediate harmful or offensive touching, coupled with an apparent immediate ability to commit the same.
Unless the context or related circumstances around the statements indicate that they are a threat, words alone do not constitute criminal harassment.
Types of verbal assault
Domestic violence
Verbal assault towards a partner may include harassment from:
the spouse;
a domestic partner;
a separated partner or spouse;
a potential or actual dater or an ex; or,
close relatives (like parents, aunts, uncles, and others)
Domestic abuse frequently involves physical assault. However, it is also possible for verbal abuse, harassment, or threats to damage property to qualify as domestic abuse.
Workplace harassment
Verbal assault at work may take the following forms:
Yelling;
Using vulgar, offensive, or insulting language; or,
Using offensive language against a victim because of their ethnicity, nationality, or membership in another protected class
In some cases, an employer may be held accountable. For instance, if an employee is unable to perform their job due to ongoing harassment, the employer could be held accountable if they failed to take action to stop the offending worker.
Is verbal assault illegal in the US
The crime of “verbal assault” does not exist. Threatening violence or bodily injury, however, is illegal.
The victim has the right to press charges of assault or battery against you if you make a threat of physical violence or carry it out. In rare circumstances, even if you do not physically damage anyone, the threat of violence may be sufficient to trigger criminal proceedings.
Threatening physical harm or violence is illegal.
If you threaten or use physical force against the victim, they may file assault or battery charges against you. Even if you don’t really hurt somebody, the threat of violence could be enough to get you charged with a crime. The charge is increased in severity since any verbal threat may be used to demonstrate malicious intent.
Any verbal threat has the potential to be used against the victim or as a warning. Threats of violence alone are enough to get you jailed in cases of verbal abuse. In order to effectively combat the abuser, find the keywords that have been used in the assault and use them. If the abuser is accused, arrested, or loses certain rights, they may be punished. This directive may be issued as an order of protection.
Conditions
There are often a few criteria that must be established in order for a claim of verbal assault to be merited by a lawyer or the wounded party. The first item typically entails the deliberate use of derogatory, insulting, or offensive language. These might be anything from obscene to repulsive. As such, offensive language must be outrageous and unreasonable for the intended audience. The perpetrator of the conduct should have been aware that verbally abusing the victim would have some form of adverse effect, at the very least resulting in an illness. The injured party must have experienced emotional or psychological stress as a result of the words said to him or her in the final component.
To build a strong and compelling argument, a few conditions must be met:
The act should be intentional and performed with conscious intent at the top of the list.
A dictionary of insulting, abusive, and offensive words makes up the second element, which is abusive and offensive language.
The sufferer has endured colossal scale devastation as the final factor to be taken into account.
If any reference is made with the intention to injure, numerous additional penalties will also be levied. Another important consideration is that neither party should engage in communication that is claimed to be a type of verbal abuse; otherwise, the claim to bring a case would be dismissed. A victim with a damaged mindset has typically gone through the abuse process alone.
What is considered abusive language in a verbal assault case
It’s crucial to know what constitutes abusive language when the court is deciding whether the abuse was severe enough to award damages for harm. In these proceedings, the words uttered have importance. Verbal threats are equivalent to the possibility of assault when they are used in conjunction with this kind of abuse. The afflicted person can think that they are in danger of being hurt. Other phrases that degrade the target are deemed offensive. It has been decided that racial and sexual slurs qualify as grounds for a claim. There are also other utterances that raise scandalous issues.
When one party is the target of verbal abuse, that person is typically the only one who suffers psychological or emotional harm as a result of the experience. However, there might be no claim if both parties have been equally harsh. In most cases, only one party is allowed to sue the other. However, when the jury or judge can see the evidence, it does support the case. A bodily manifestation of the injuries or illness reveals to all parties how the sufferer has suffered and justifies the need for a claim for compensation.
Elements of verbal assault
The laws of a state determine the criteria and conditions needed to establish assault. However, it is generally accepted that verbal threats are not consistently viewed as an assault.
A verbal threat is a declaration made to another person that the speaker will do something to the recipient that will result in loss, harm, or punishment. Even though this term seems quite similar to the definition of assault, it is likely not an assault to just shout threatening remarks at another person.
A verbal threat, however, might turn into an actual assault in some circumstances. For instance, if someone threatens another person by saying they are going to hit them, those statements usually won’t be considered an attack on their own. However, it can be considered a verbal assault if the speaker is swinging a baseball bat while reciting these phrases.
In essence, a verbal threat turns into a criminal act when:
Threatening the listener or the listener’s family with damage or death;
The threat from the speaker is clear and specific; or,
The speaker makes the threat either orally, in writing, or through electronic correspondence, and the listener has a reasonable basis for believing that the speaker will carry it out (e.g., email, text message, etc.).
A person may file charges for verbal threats when all of these conditions are satisfied and it seems from the circumstances that the threat is serious. This can be done by the person who was threatened by calling the police and requesting that they submit an incident report. The police will then look into it further. A local prosecutor will review the report and decide whether to file criminal charges against the suspect if there is sufficient evidence.
Defenses against a verbal assault case
No threat of imminent danger
Remember that there must be “a reasonable apprehension of impending danger” for any circumstance to qualify as an assault under the law. As a result, it makes no difference whether a victim of an assault may safely flee from danger after the attack. As soon as they become aware that they could be hurt or wounded, the assault starts.
No malicious intent
Imagine that a birthday party is being held without a theme. Two of the friends decide to attend as a joke, arrive with weapons and terrifying masks, and start to threaten the person whose birthday it is. Here, there is no malicious intent, and if there is no malicious intent, chances are less that you would be liable for assault.
Reciprocation
As previously stated, if the person who initiated the verbal assault retaliates with verbal assault, no case can be made against the person who initiated the verbal assault.
Difference between verbal assault and verbal abuse
The phrase “verbal assault” is often very vague. To qualify as a verbal assault, a situation must meet certain criteria. Verbal abuse is frequently mentioned when individuals discuss verbal assault.
In a personal, familial, or professional connection, two people may say things to one another that would be seen as verbal abuse. In verbal abuse, the victim may be shamed or treated poorly. Except when a person is threatened with harm, it is not regarded as an assault.
When someone is accused of verbal assault, the prosecution will attempt to show that they had every intention of carrying out the threat or, at the very least, that the victim had a reasonable basis for believing the threat was serious. They must also show that the alleged assaulter may realistically carry out their threat.
Conclusion
Suing for verbal harassment on its own can be difficult, even though in some situations, words can inflict a considerable amount of pain and trauma. However, in rare situations, verbal abuse alone may be sufficient to file a lawsuit.
Unfortunately, there is no set standard for determining when verbal harassment warrants legal action. However, you might be able to file a lawsuit if you can demonstrate the following:
Your verbal assault was done on purpose by the offender, who used derogatory or abusive language.
The offender ought to have realized that their verbal assault would greatly distress you.
You experienced psychological or emotional harm as a result of the verbal abuse.
However, you would typically need to show that the offender actually intended to damage someone in order to establish a legal case against them. If you are the victim of abusive language at work, you may also be able to sue for racial and sexual slurs. The next step would be to demonstrate that the harassment was motivated by one of your protected characteristics, such as age, race, or religion etc.
Frequently Asked Questions (FAQs)
Can you be sued for verbal assault?
Regardless of whether the assault led to criminal charges, the victim of harassment or defamation has the right to sue the offender in civil court. If they have proof of the verbal assault or there are witnesses who witnessed it, they may be able to file a lawsuit.
How does a lawyer prove a case for verbal assault?
Proving verbal abuse is challenging. Prosecutors, however, may use a variety of evidence, including written documents and tape-recorded conversions, to support their case. If someone threatens to harm someone in a social media post, their threat may be used as proof if they really do harm to the target. A video of someone making threats on social media may occasionally be posted by a third party and used as proof.
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This article has been written by Mudit Gupta, who is currently pursuing BBA.LL.B (Hons.) from the University of Mumbai Law Academy. This article discusses all the necessary details about the law of torts for nuisance in the United States of America.
It has been published by Rachit Garg.
Introduction
Enjoyment of one’s own rights and property is one of the basic and fundamental rights which is guaranteed to every citizen by his/her country. Same rights are given to the United States’ citizens. If someone interferes with the enjoyment of one’s own property, then he is said to commit the offense of nuisance.
Tort of nuisance: A brief overview
Although, there is not a clear definition of nuisance in the jurisdiction of the United States, the tort of nuisance is interpreted as the legal wrong that takes place when a person is deprived of the enjoyment of his/her property due to a significant and unreasonable interference caused. The word nuisance has been derived from the French word ‘nuire’ which means to hurt or to annoy. The law of nuisance in the United States provides a way for property owners to seek relief for any unreasonable and significant interference causing interference in the enjoyment of the property. Nuisance can take place in many forms, including noise pollution, pollution of the air or water, blocking of light or access to land among many others. Anything substantial, causing interference in the rightful enjoyment of one’s property is considered a nuisance. In this article, we will explore the legal principles of torts of nuisance in the United States, the different types of nuisance, and the remedies that may be available to those affected by nuisance.
Tort of nuisance can be divided into two main categories. One is known as private nuisance and the other is known as public nuisance. Private nuisance is said to have happened when the interference with the use and enjoyment of property is suffered by a specific individual. For instance if your neighbor plays extremely loud music making it uncomfortable for you to live peacefully in your own residence. On the other hand, public nuisance is said to have occurred when the interference affects the community at large. For instance if a factory secretes untreated waste into a river causing health and sanitary issues to a large number of people living in that area.
To establish a claim for nuisance in the United States, a person must show that the interference with the use and enjoyment of their property is significant and unreasonable. This involves a consideration of factors such as the nature of the interference, the severity of the interference, and the duration of the interference. The court will also consider whether the defendant had a reasonable alternative course of action, and whether the plaintiff’s use and enjoyment of their property is particularly sensitive.
Remedies for nuisance in the US can include an injunction to prevent the continuation of the nuisance, damages to compensate the plaintiff for any harm suffered, and abatement of the nuisance. An injunction is a court order that prohibits the continuation of the nuisance and is often the most effective remedy. Damages may be awarded for any harm suffered as a result of the nuisance, such as loss of property value or medical expenses. Abatement may be ordered by the court when the nuisance can be removed, such as when a factory is polluting a river.
What is nuisance as per the law of Torts
The first basic question which comes to mind while discussing Nuisance is what does the term Nuisance mean?
The statute does not give a clear definition of the term nuisance so let’s understand a few definitions given by some eminent jurists. A very famous American Scholar, William Prosser, once said that “there is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.” But in simple words, Nuisance is to be considered as a civil wrong which deprives a citizen or a group of citizens from their rightful enjoyment of either their personal property or public property.
Another very eminent jurist of law is Salmond. According to him, nuisance consists in causing or allowing to cause without lawful justification, the escape of any deleterious thing from one’s land or from anywhere into land in possession of the plaintiff, such as water, smoke, gas, heat, electricity, etc. For nuisance to take place, such an escape should cause disturbance in rightful enjoyment of the property to the person having the possession of the property.
From reading all these definitions given by the eminent jurists, we can say that nuisance refers to an activity which is intentional and creates unreasonable interference into the peaceful use and enjoyment of property of the plaintiff causing interference to him/her in the rightful enjoyment of the property and is also non-trespassory in nature.
Essential Elements of Nuisance
As per the law of torts, for the tort of nuisance to take place, there are a few essential elements which are necessary for determining whether a tort of nuisance has occurred or not. These are:
Interference with property
For enforcing a suit of nuisance against a party, the first and foremost requirement is that the plaintiff must show that the defendant’s actions have interfered with the plaintiff’s use and enjoyment of his/her property. This is the basis for any suit of nuisance as the remedies are granted on the basis and extent of the damage. If there is no interference regarding the enjoyment of the property then in that case, a suit of nuisance cannot be enforced.
Substantiality
The interference must be substantial, unreasonable and of continuing nature, meaning that it materially affects the plaintiff’s quality of enjoyment of the property.Continuance does not only mean a habitual act. It also includes an activity having its results, time and again in near future also. The court of law take into account a significant act causing damage to the enjoyment of property to the plaintiff. If the court of law considers some activity to be reasonable and non-substantial in nature, then in that case no remedy is provided to the plaintiff as it is considered that the particular activity will not cause any annoyance to a reasonable person.
Intent
The intention of the defendant also plays a critical role in giving a decision in a case of nuisance. If the activity done by the defendant was intentional and caused damage to the plaintiff then in that case the decision would be given against the defendant otherwise it will be given against the plaintiff. In most cases, the defendant’s conduct must be intentional or unreasonable, although some acts of nuisance may be considered as an exception to this such as cases of strict liability where the intention of the defendant does not matter.
What are the different types of nuisance
Now let’s understand about the types of Nuisance in the United States.
In the States, the concept of nuisance is further categorized into two parts. These two parts are separated depending upon the number of people aggravated by a particular activity and regarding the kind of property of which the enjoyment is deprived off. The first of two is Private Nuisance and the second one is Public Nuisance.
Private nuisance
The first one is a private nuisance. It is a type of nuisance where the defendant infringes the right in personam of the plaintiff. The plaintiff is aggrieved by the defendant because of the interference caused by the defendant on the personal rights of the plaintiff which are not common to a large group of people as well as is related to a personal property of the plaintiff.
Elements of private nuisance
There are 3 main elements to prove a private nuisance to have occurred. These 3 elements are:
Plaintiff has the possession of the property on which the nuisance is said to have occur
Disturbance or annoyance caused by defendant’s act hinders the enjoyment of property to the plaintiff
The Act should be substantial and uncooperative in nature for a reasonable man.
These 3 elements are the key points which need to be proved before the court of law to get the relief for the nuisance suffered on a personal property. These concepts were discussed by the court in the case of Lillien v. Hancock, where the court said that, for determining whether an act is unreasonable or not, the court must use a balancing test and consider all the other factors involving the nature of the interference, and the use and enjoyment of the plaintiff which is interfered with, along with all other surrounding circumstances.
In the case of Pestey v. Cushman, the court said that although most of the times unreasonable interference with the enjoyment of the plaintiff and unreasonable use by the defendant co-exist, both of these concepts are different from each other. It is possible that the defendant’s use of his property, although reasonable, constitutes a common-law private nuisance as it unreasonably interferes with the use of property of the plaintiff.
Public nuisance
The second kind of nuisance is public nuisance. It is a type of nuisance that basically affects the right in rem which means that in this type of nuisance only an individual’s rights are not infringed, the rights infringed are of a group of people. All the people are equally entitled for the damages from the side of the defendant because all of them are equally disturbed by the act of the defendant. Such an act of nuisance usually occurs on a property which is available to a large number of people such as community parks. It was explained in the case of Keeney v. Town of Old Saybrook.
Essentials of public nuisance
To prove the happening of a public nuisance, there are 3 key essential points which are considered. They are:
A person must have done an act or an illegal omission. Omission in this case only applies to people who have the responsibility for the same.
Such an act or omission must cause any common injury, danger or annoyance to the public or to the people in general. Such an act of nuisance usually occurs on a public property.
Such an act or omission must be substantial and continuing in nature. Non-substantial acts or omissions are not taken into consideration.
Although, public nuisance is established when a right of people at large is infringed but, in case if some individual has sustained some personal damage due to an activity which is public nuisance, then that person can sue the defendant for the same. The only requirement is that the person has to prove that the act was a public nuisance. It was explained in the case of Higgins v. Connecticut Light Power Co. and the court said that the public nuisance does not depend on the number of persons annoyed, but by the possibility of annoyance to the public by the invasion of its rights.
Who are the parties to the nuisance action
In a nuisance action as per the law of torts in the United States, the parties are typically the person or entity causing the nuisance commonly known as defendant in a suit of nuisance and the person or entity suffering from the nuisance is commonly known as the plaintiff. The plaintiff has the liability to demonstrate that the defendant’s unreasonable actions have caused a significant and unreasonable interference with the plaintiff’s use and enjoyment of their property.
In some cases, there can be multiple plaintiffs or multiple defendants, for eg. when a group of neighbors are affected by a single source of nuisance or when multiple sources of nuisance contribute to the interference with the plaintiff’s property. Also, in situations involving public nuisance, the government may be involved as a party, either as a plaintiff seeking relief or as a defendant responsible for abating the nuisance.
In a nuisance action, the plaintiff may seek various remedies, including an injunction to prevent the continuation of the nuisance, damages to compensate for any harm suffered, and abatement of the nuisance. The specific remedies available will depend on the specific facts and circumstances of the case, as well as the applicable laws and regulations.
Remedies for nuisance
If the legal rights of a person are infringed then the law also provides for some legal remedies. The remedies for tort of nuisance that are provided in the suits of nuisance by the courts in the jurisdiction of United States of America includes the following:
Injunctions
When a particular act annoys a person who has a right to enjoy the property then that act is said to cause nuisance to the person. The first and foremost requirement of the plaintiff in such cases is to stop that activity. This can be done by the way of an injunction. An injunction is an order of the court which prohibits the continuation of the nuisance. This is often the most effective remedy and is typically sought when the nuisance can be easily prevented or stopped. Usually as a remedy, permanent injunction is enforced after the completion of the proceedings but interim injunctions are enforced during the trial of a particular case in order to stop the ongoing annoyance to the plaintiff and then decide upon the dispute further.
Damages
When a person aggrieved by the nuisance approaches the court, then he/she seeks two remedies. First is stopping the activity which is causing nuisance and second is getting the damages for the harm he/she has suffered. First remedy is granted in the form of injunction which is discussed above and the second one is granted by way of damages. Damages are awarded to compensate the plaintiff for any harm suffered as a result of the nuisance, such as loss of property value or medical expenses.
Measurement of damages
In most of the cases courts restrict the liability regarding the damages in cases of nuisance only for the amount of the injury sustained like, the value of the property. But, in some cases where the nuisance caused other sorts of injury also, like the loss of business revenue, then in those cases orders for special damages are also given by the courts.
Abatement
Another type of remedy which can be granted by the court of law is abatement. Abatement may be ordered by the court when the nuisance can be removed and such removal is the best way possible to grant relief in that particular situation. For example, when a factory is polluting a river the court may order for the removal of that factory from that particular place as it will be harmful for a large group of people residing in that vicinity. In some cases, the court may appoint a receiver to take control of the property and remove the nuisance.
Declaratory relief
Sometimes the problem arises when the parties are not certain of their rights provided to them by the law of the country. In that case if they feel annoyed by some activity, they file a suit and the judge gives declaratory relief to the parties. A court may issue a declaratory judgment to clarify the rights and responsibilities of the parties with respect to the nuisance. Declaratory relief allows the parties who are not sure about their rights to prevent the accrual of damages that can be avoided and to obtain an adjudication before the parties bring a coercive lawsuit demanding injunction and damages.
The remedies which are given to the people aggrieved, depend on the particular facts and circumstances of the case, as well as the applicable laws and regulations. In some cases, judges may also order the defendant to pay the attorney’s fees and costs which were incurred by the plaintiff in pursuing the legal action.
The end goal of the remedies granted in a nuisance claim is to provide relief to the plaintiff and to hold the defendant responsible for their actions causing any harm to the plaintiffs.
Defenses for nuisance claims
Not all claims for nuisance are maintainable in the Court of Law. The legislation has provided for some exceptions where the defendants are not liable for the tort of nuisance. These cases are:
Statutory authority
Suppose, you are living in a particular area near an under-construction government building. The noise and dust has made it very difficult for you to live peacefully. In this case, you are suffering from nuisance but is there any remedy available at your disposal? The answer is no because the act of this construction is protected by the defense of statutory authority. This defense gives the defendant’s conduct an authorization by way of a statute or ordinance and hence, it may not be considered an act of nuisance.
Coming to the nuisance
Another case in which the plaintiff cannot claim any remedy is when he is aware that the activity which is causing nuisance to him/her was already happening. Suppose there is a gym near a particular house where zumba sessions are taken 3 times a day and the plaintiff having knowing this fact purchases that house then in that case the plaintiff cannot claim any remedy as the plaintiff moved into an area where the defendant’s conduct was already occurring and hence, they may not be able to recover for nuisance.
Laches
As per the doctrine of laches, if the plaintiff unreasonably delayed in bringing their complaint, they may be barred from recovery for nuisance. The plaintiff is expected to approach the court within a reasonable period of time. If he/she approaches the court beyond the reasonable time and also without having a valid reason for the same, then in that case the defendant can use this point as a defense. Suppose the act of nuisance has been committed over a long period of time such as loud music, then in that case if the plaintiff approaches the court for remedy within a reasonable period of time then the remedies will be given otherwise it would be considered that the act was not causing any harm to the plaintiff and hence, no remedy will be granted.
Public nuisance at workplace due to COVID-19
In the previous 2-3 years, COVID-19 has given birth to many lawsuits. One type of such suits are relating to public nuisance suits filed by the employees. There is a clear spike in the number of lawsuits by the employees suing their employers for the point that workplaces are not complying with COVID-19 health guidelines and are liable for public nuisances requiring abatement.
Courts have varied views on whether non-compliant workplaces warrant a public nuisance. Implementing and enforcing workplace policies and practices that meet evolving federal, state, and local health guidelines can help avoid public nuisance claims. Employers facing public nuisance claims may have various defenses available including the primary-jurisdiction doctrine and compliance with federal, state, and local laws, regulations, orders, and public health guidelines concerning COVID-19. To help reduce the risk of public nuisance litigation, businesses can try to stay informed of evolving federal, state, and local laws, regulations, orders, and administrative agency guidelines related to COVID-19, and modify their workplace policies and practices to mitigate the spread of COVID-19 in the workplace. This will help both the employees as well as the employer.
Case Laws
Pennsylvania Coal Co. v. Mahon (1922)
In this case, surface rights to a particular land were granted to Mahon by way of a deed and mining rights were reserved by the Pennsylvania Coal company which was used to mine the coal under the surface to Pennsylvania Coal Company and that Mahon was taking this property subject to all the risks associated with mining. The Kohler Act, when enacted, prohibited mining which could affect the integrity of the land. Mahon sued Pennsylvania Coal Co., arguing they could not mine for coal under his property as it would affect the integrity of the land. The trial court agreed that the mining would cause damage but did not issue an injunction, arguing that the statute was unconstitutional. The PA Supreme Court argued that this statute was a valid exercise of police power and the case was sent to the Supreme Court.
This case established the principle of regulatory taking which states that government regulations can constitute a taking of property if they go too far in limiting the use of private property. In this case, the Supreme Court held that a zoning ordinance that prohibited coal mining beneath homes was a taking of property without just compensation.
Boomer v. Atlantic Cement Co. (1970)
In this case, A large plant was started by the Atlantic Cement Company. The neighbors residing in the vicinity filed a suit for injunctive relief and damages, alleging the acts of the company causing injury to their property from dirt, smoke, and vibrations that was generated from the plant of the company. The case was tried, and the court considered the act to be a nuisance and ordered for temporary reliefs. No injunctive relief was given to the plaintiffs. The cases were appealed by many parties and several of them were settled. There remained three cases which were retried, and two of those three landowners settled after retrial, leaving just one who had not settled.
This case established a rule which stated that punitive damages will not be awarded where the wrong regarding which the complaint has been filed is morally culpable or was done with evil motive.
Matthews v. Bay Head Improvement Association (2006)
In this case, a suit was brought by the Borough of Point Pleasant against the Borough of Bay Head and the Bay Head Improvement Association, generally asserting that the defendants prevented Point Pleasant inhabitants from gaining access to the Atlantic Ocean and the beachfront in Bay Head. The proceeding was dismissed as to the Borough of Bay Head because it did not own or control the beach. Subsequently, Virginia Matthews, a resident of Point Pleasant who desired to swim and bathe at the Bay Head beach, joined as a party plaintiff, and Stanley Van Ness, as Public Advocate, joined as plaintiff-intervenor. When the Borough of Point Pleasant ceased pursuing the litigation, the Public Advocate became the primary moving party. The Public Advocate asserted that the defendants had denied the general public its right of access during the summer bathing season to public trust lands along the beaches in Bay Head and its right to use private property fronting on the ocean incidental to the public’s right under the public trust doctrine
This case established a rule which said that the public must be given both, access to as well as use of privately-owned dry sand areas as reasonably necessary. While the public’s rights in private beaches are not coextensive with the rights enjoyed in municipal beaches, private landowners may not in all instances prevent the public from exercising its rights under the public trust doctrine. The public must be afforded reasonable access to the foreshore as well as a suitable area for recreation on the dry sand.
Conclusion
In conclusion, the law of torts for nuisance in the USA provides a legal framework for individuals to seek compensation for harm caused by unreasonable and excessive interferences with their use and enjoyment of their property. Nuisance can take many forms, including noise, odor, and vibration, and it can affect both private and public property. The elements of a nuisance claim include substantial interference with property rights, unreasonableness of the defendant’s conduct, and causation. A person affected by nuisance can seek an injunction to halt the activity causing the harm or monetary damages to compensate for the harm suffered. Understanding the law of torts for nuisance is essential for individuals, property owners, and businesses operating in the USA.
Frequently Asked Questions (FAQs)
What is the difference between nuisance and negligence?
These two terms are very different from one another. Nuisance is said to be done when the harm done is intentional whereas in case of Negligence annoyance is caused due to lack of proper care from the side of the defendant. Nuisance invites a stricter liability than that in case of negligence. In case of Negligence, there is fault based liability whereas in case of Nuisance, there is strict liability.
Can a nuisance claim be made against a government entity?
Yes, a nuisance claim can be made against a government entity in the United States of America. These claims are made under the Federal Tort Claims Act, 1946. The government, including its agencies and departments, is subject to the same laws as private individuals and corporations and can be held liable for creating a nuisance.
However, there are some special considerations and limitations when making a nuisance claim against a government entity such as sovereign immunity for some acts.
Can a nuisance claim be made by the government?
Yes, a nuisance claim can be made by the government. As a matter of fact, most of the public nuisance suits have the government as a plaintiff.
What is the difference between Nuisance and Trespass?
The key difference between Nuisance and trespass is that trespass is direct and requires physical invasion with the property of the person having its possession while nuisance can be created in an indirect manner. It was explained by the court in the case of Rickel v. Komaromi.
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This article is written by Upasana Sarkar, a student at Jogesh Chandra Chaudhuri Law College. This article aims to provide an understanding of second degree assault under US Law. It provides a detailed analysis of the various crimes that fall under assault in the second degree, their penalties, and the defenses available against them.
It has been published by Rachit Garg.
Introduction
Assault is commonly defined as a deliberate act that is intended to cause apprehension or fear in the mind of the victim. It is an act that causes fear in the mind of another person without any kind of physical contact. This states that the person committing the act need not make any physical contact with the sufferer. Under US Law, degrees of assault are mainly of three degrees, i.e., first degree assault, second degree assault, and third degree assault. But it may vary from state to state. In some states, there are also fourth degree assaults. Under what degree an act of assault will fall totally depends upon the circumstances of a case. An act of assault can be done by a person without laying a hand on the other person. It is a voluntary act committed by the offender.
Definition of second degree assault
Second degree assault is an intentional act of a person where he knowingly causes some serious kind of bodily harm or injury with a deadly weapon or insensibly causes severe physical injury to another. A person is said to be guilty of assault in second degree if he or she does not fall under assault in first degree and he or she-
With the intention to assault another person, deliberately assaults him and thereby carelessly causes substantial bodily harm or injury; or
With an intention to cause bodily injury to an unborn child, deliberately and illegally assaults the unborn child by inflicting serious bodily harm on the mother of an unborn child; or
With the intent to assault another person, uses a deadly weapon to assault him; or
With an intention to inflict bodily harm or injury on another person, intentionally exposes him to poison or any other destructive or noxious substance; or
With an intention to commit a felony, assaults another person; or
With an intention to cause bodily pain or agony to torture the other person, knowingly inflicts bodily harm upon him; or
With the intention to assault another person, strangles or suffocates him.
Illustrations of second degree assault:
‘A’ driving on the highway and he takes his eyes off the road for a few seconds to check his mobile, which leads to an accident that paralyzes ‘B’. ‘A’ could be charged with second degree assault.
‘X’ intentionally pushed ‘Y’ down the stairs, causing him to suffer a serious head injury. ‘X’ could be charged with second degree assault.
‘P’ shot ‘Q’, his boss, for getting fired from his job. P can be charged with second degree assault.
Meaning of substantial bodily harm
A bodily harm or injury means any kind of physical pain, illness, or any physical or mental impairment. Substantial bodily harm means a condition that involves a substantial risk of death. It involves substantial disfigurement or loss of function of a body part or results in fractured or broken bones. When a person threatens another person with a dangerous weapon, he can be charged with second degree assault.
Meaning of deadly weapons
Deadly weapons include those that can cause serious harm to another person. Some objects that can be regarded as deadly weapons are as follows:
Any loaded or unloaded firearm;
Any sharp objects like a knife or blade;
Any flammable or combustible liquid;
Any other object that can be used to cause serious bodily injury or death.
Penalties for second degree assault
Second degree assault is a crime of violence that is committed voluntarily by a person against another person.
Penalties for second degree assault in Washington
Second degree assault in Washington is considered a class B felony, which is punishable with imprisonment for a term that can extend up to ten years, or a fine that can extend up to $20,000, or both under the Revised Code of Washington.
Penalties for second degree assault in New York
Second degree assault in New York is considered a class D felony, which is punishable with imprisonment for a minimum term of two years that may extend up to seven years under New York Penal Law. The various factors that determine the term of imprisonment are as follows:
Previous convictions: This means any prior felony convictions of the offender within the last ten years.
Non-violent felony conviction: This means any non-violent felony conviction of the offender within the last ten years.
Violent felony conviction: This means any violent felony conviction of the offender within the last ten years.
Persistent felony offender: This means at least two previous felony convictions for the offender.
Penalties for second degree assault in Colorado
Second degree assault in Colorado is considered a class 4 felony, which is punishable with imprisonment with a minimum term of 5 years that may extend up to 16 years under the Colorado Revised Statutes.
Penalties for second degree assault in Maryland
Second degree assault in Maryland is considered a misdemeanor, which is punishable with imprisonment for a term that may extend up to 10 years, or a fine up to $2,500, or both. If the accused assaulted a law enforcement officer, parole officer, or probation officer who was doing his official duties, he could be sentenced to 10 years’ imprisonment along with a fine that may extend up to $5,000 under the Maryland Criminal Code.
Defenses against second degree assault
When a person is accused of second degree assault, he can take the following defenses, which are as follows:
Self-defense: Any person can use reasonable force to defend himself against another person. If the accused can prove it, he would not be charged with second degree assault.
Intoxication: Voluntary intoxication would not constitute a valid defense against assault. However, involuntary intoxication can be used as a valid defense when charged with second degree assault.
Insanity: If the accused is an insane person or was suffering from temporary insanity at the time of the alleged assault, he can use it as a valid defense when charged with second degree assault.
Entrapment: If the accused is induced by law enforcement to commit an assault that he would not have committed otherwise, he may use entrapment as a valid defense when charged with second degree assault.
Consent: If a person has himself consented in any kind of games, knowing that it can cause bodily injury, then the other person cannot be charged with second degree assault.
Alibi: If the accused can prove that the victim made an error in identifying the offender, he can use mistaken identity as a valid defense when charged with second degree assault.
Defense of Property: Any person can use reasonable force to defend his property against another person. If the accused can prove it, he would not be charged with second degree assault.
Heat of passion: If the victim has himself provoked the accused and that provocation made him act in the heat of passion that caused injury to the victim, then the accused can use that as a valid defense when charged with second degree assault.
Lack of intent: If the act caused by the accused was accidental and not intentional, then the accused also cannot be charged with second degree assault.
Judicial pronouncements
In the case of People v. Warren (2012), the defendant had pushed the victim down the staircase onto a concrete landing. So the defendant was charged with second degree assault. Under New York Penal Law, it was observed that though concrete is not usually considered a deadly or dangerous weapon when it is used in the manner in which the defendant used it, it becomes a deadly weapon or dangerous instrument.
In the case of People v. Taylor (2014), the plaintiff picked up the defendant’s girlfriend and brought her to a concert. The defendant came to meet her there. Later, an argument took place between the plaintiff and the defendant in the parking lot. During the argument, the defendant’s knife caused a deep cut across the plaintiff’s abdomen. Under the New York Penal Law, the defendant was convicted of second degree assault on the basis of a 16-inches deep cut of the plaintiff’s abdomen with the defendant’s pocket knife.
In the case of People v. McElroy (2014), a dispute took place between the plaintiff and the defendant. The defendant, the passenger, was intoxicated, so the plaintiff drove him to his address. But initially, he had taken him to the wrong address. A dispute over the fare arose between them. The defendant then left the vehicle after paying the fare with his credit card without signing the credit card receipt. The plaintiff, therefore, blocked his way when the defendant punched him. The victim suffered serious head and brain injuries as he fell backward, hitting his head on the sidewalk. Under the New York Penal Law, the defendant was charged with second degree assault.
In the case of People v. Plemmons (2021), the defendant spat on two sheriff deputies who were trying to determine whether she was suicidal or not. The deputies arrested her for spitting on them and charged her with second degree assault. Though the act of spitting did not cause physical harm, the act was considered serious at the time as COVID-19 could easily be transmitted through the droplets of saliva, which could lead to greater bodily harm.
In the case of People v. Emily (2014), the victim was taken to the hospital with multiple bruises and a brain injury. She claimed that her injuries were caused by the defendant, who assaulted her for a few days in his residence. Her husband, the defendant, beat his wife and forcefully made her consume a large quantity of alcohol, which resulted in brain injury and needed emergency surgery. The defendant was convicted of second degree assault under the New York Penal Law.
Conclusion
Second degree assault is very serious in nature. Since the consequences of second degree assault are severe, the punishment awarded to the offenders is also harsh in nature. This kind of felony is punishable by imprisonment and fines. The offender has to undergo the sentences awarded to him by the court. There are also various defenses available to them to ensure a fair trial. If the offender is convicted for the first time, then penalties are less as compared to a habitual offender.
Frequently asked questions (FAQs)
Whether second degree assault is a misdemeanor or felony?
The facts and circumstances of the case tell whether second degree assault is a misdemeanor or felony. It also varies from state to state. In Colorado, second degree assault is a felony, whereas in Maryland, second degree assault is a misdemeanor. People who are convicted more than once are awarded longer sentences and greater fines.
What is the difference between assault and battery?
When the assault results in actual physical harm, the offender may be charged with battery. Though both of them are considered crimes and torts, the penalties in some states differ from other states as each of them has a distinct set of penalties.
What is the sentence of parole and fines for second degree assault under US law?
The compulsory sentence of parole is three years, and the minimum fine is $2,000, which may extend up to $500,000. In most cases, second degree assault is a class 4 felony.
What are the other offenses related to second degree assault?
It varies from state to state. In Colorado, there are other offenses that come under second degree assault, which are as follows:
Menacing: This is a kind of offense that creates fear in the mind of a person that they are going to get seriously hurt.
Domestic violence: This type of offense can take place only in a marital relationship. It needs an intimate relationship between the victim and the defendant.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article is written by Ms. Sushree Surekha Choudhury, a student of KIIT School of Law, Bhubaneswar. The article gives an insight into the United States Bill of Rights and its ten famous Amendments. The article gives an overview of the legal interpretations of these ten Amendments while also discussing their modern-day implications, supported by relevant case laws and judicial interpretations.
it has been published by Rachit Garg.
Introduction
What according to you is one of the first steps of moving into a new country? Say, the United States. What according to you is the basics of living by virtue of birth or residence in a country? We say it is to know your basic rights there. It is crucial that a person is aware of the rights, liberties, and freedoms he is entitled to have. He must also know his duties and obligations towards the country of his domicile or residence. Additionally, he must know what constitutes a crime in that country. He must know the system of punishment prevalent in that country. All of these questions can be answered in one document. Can you guess? Yes, it is the Constitution of that country. The Constitution is the supreme law of any land and it is the governing document that determines all the aforementioned questions. Additionally, the government enacts and implements several other legislation, codes, rules, and regulations to supplement the Constitution. Such is also the case with the US Constitution and the US government. The US Constitution is the supreme law in the country. It is followed by all its citizens, government officials and departments, and everyone else alike. It makes no discrimination on the basis of caste, color, creed, or religion. This is something that has been achieved over years of debate and scrutiny. When the US Constitution was initially framed, it was up for recognition by way of ratification by different states in the country. But like any other legal enactment, the US Constitution also faced support and opposition alike. Initially, the US Constitution was not as it is today. The first draft of the US Constitution was formulated and discussed for the first time in Philadelphia in 1787 (Constitutional Convention of 1787) when delegates from 13 different states joined to do so. While the outcome of this gathering was historical, the initial document was flawed with several shortcomings. The biggest shortcoming of this draft of the US Constitution was that it lacked an annexure/bill prescribing individual rights that the US citizens would be entitled to have. The proposed draft talked about the powers and rights of the US government by specifying the things that the government could do, but it remained silent on what the government could not do. In other words, the proposed draft was such that it gave unlimited and unrestricted powers in the hands of the government without imposing reasonable restrictions to prevent arbitrariness and abuse of power. Additionally, while the current Constitution of the United States is based on the values of non-discrimination, it was not such in its initial draft. Back in the day, racial discrimination was deeply plaguing the United States. The US Constitution was no exception. The initial draft of the US Constitution stated that it would apply only to the elite white men who own property. This draft of the US Constitution went through phases of discussions and debates where people were divided into federalists and anti-federalists. To address these issues and provide a just and equitable solution to them, the US Bill of Rights was proposed to be enacted.
In this article, we will learn everything about the United States Bill of Rights, its history, its amendments, and its legal implications, with the help of legal understanding and relevant case laws.
Brief history: development and enactment of the Bill of Rights
The US Constitution is the supreme law of the land that binds the government, citizens, and other authorities alike by defining rights, freedoms, and fundamentals of governance of the state. It prescribes punishment for infringement and remedies against violation of guaranteed rights. The US Constitution was adopted in 1788. At this point, it was ratified only by nine states as others demanded certain changes and additions be made to the Constitution before they ratified it. This is when the US Congress introduced the Bill of Rights. It contained a total of twelve proposed rights and liberties out of which ten were adopted in 1791. Thus, the first ten amendments to the US Constitution are collectively known as the Bill of Rights (1791). The Bill of Rights also puts certain reasonable restrictions on the conduct of the government and its departments in order to guarantee rights to citizens. The Bill of Rights amendments derived its inspiration from the 1215 Magna Carta.
Magna Carta is an age-old 13th-century document that gave rights and liberties to people against the tyranny of the king. The principles of rights, justice, and freedom as have been enshrined in the Magna Carta inspire American society even today. Apart from this, the US Bill of Rights was also inspired by the Virginia Declaration of Rights (1776), the Northwest Ordinance (1787) as well as the English Bill of Rights (1689).
Federalists v/s anti-federalists
The period between the adoption of the US Constitution to the drafting of the Bill of Rights faced both support as well as opposition from sections of society and political revolutionaries. They were essentially divided into two groups – federalists and anti-federalists.
The federalists, in a series ofFederalist Papers, opposed the inclusion of the Bill of Rights in the US Constitution because they believed it would create procedural uncertainties in the country. They believed that the government is wise and diligent enough to protect and guarantee personal liberties to citizens.
On the other hand, anti-federalists opposed a Constitution without a Bill of Rights that vested untamed power in the hands of the government. Anti-federalists focused on the need to have a Bill of Rights in the Constitution to limit the powers of the federal government by instilling certain reasonable restrictions. They believed that an untamed government will ultimately become a tyrant and individuals’ rights would be under threat. After much debate, the Bill of Rights was incorporated as an amendment to the US Constitution in 1791.
United States Bill of Rights: arrangement of Amendments
The Bill of Rights was drafted on the theory of natural rights which states that individuals are entitled to certain rights and liberties by God himself. Thus, the state does not have the power to infringe upon these rights. James Madison is the most notable name in the drafting of the Bill of Rights. James, along with others, ensured a Bill of Rights that would put a check on the federal powers of the state in a way that guaranteed the full realization of individual liberties. This was done in the form of the following ten amendments:
First Amendment: “freedom of religion, speech and press; rights of assembly and petition”
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
These are the rights guaranteed under the First Amendment of the US Constitution which accords the liberal status to America. The First Amendment of the US Constitution:
Forbids the government from making laws that would hinder the free exercise of religion by any religious community in the states.
Forbids the government from interfering in the religious affairs of any community in the states or making an effort to control it.
Forbids the government from restricting people’s freedom of speech and expression in the states.
Guarantee absolute freedom of the press and not restrict or control it by states’ action.
Guarantee its citizens’ rights and freedom to assemble when done peacefully.
Guarantees a right to petition the government for redressal of their grievances.
These fundamental liberties make American citizens some of the most liberated in the world. Americans get these liberties by virtue of birth. They do not have to attain the legal age to exercise these rights. Even citizenship is not a bar to the exercise of these rights and liberties. Both citizens and non-citizens have the right to assemble, freedom of speech, press, and exercise their choice of religion in the US without any hindrances from the state. This includes the right to petition the government for grievance redressal.
Right to religion
Religious freedom refers to the right of individuals to believe, profess, and participate in the religious affairs of any community, publicly or in private. Religious peace and freedom are fundamental to any democratic nation. Non-intervention of the state in religious practice and the establishment of one or a community is the basis of religious freedom enshrined under the First Amendment to the US Constitution. All these rights and freedoms exclude the government from supporting, promoting, or opposing any particular religion in the US.
It was held inReynolds v. United States (1878)that Congress is not allowed to exercise legislative authority over the religious opinions of people and it can only manage affairs that concern civic obligations of the state or to protect public order. A unique concept developed through this case in the US Supreme Court called the “wall of separation between the church and the state.”
It was further held by the US Supreme Court in Walz v. Tax Commissioner of the City of New York (1970)that the federal government or the state governments cannot indulge in establishing or sponsoring any religious institution because it indicates economic assistance and direct participation of the state in religious activity. This is inconsistent with the First Amendment of the US Constitution.
Freedom of speech
Freedom of speech can be defined as the unrestricted, free flow of ideas and expression without any restriction or intervention by the state or any of its departments. Freedom of speech and expression is said to be guaranteed when it is exercised without the fear of repercussions.
The US Supreme Court observed in New York Times Co. v. Sullivan (1964) that the freedom of speech and that of the press are fundamental liberties guaranteed to American citizens and exercise of this right is the basis of a free society and feature of a free government.
The Supreme Court further held in Stanley v. Georgia (1969)that the US Constitution provides freedom of thought and opinion, the right to acquire information, and freedom from the government’s intervention in the privacy or thoughts of the citizens. Thus, a community shall not refrain from expressing its beliefs even if they seem unpopular.
However, freedom of speech is not an absolute right. It is subject to certain reasonable restrictions. Situations like child pornography, obscenity, communication of threats, or disrespectful words are not included within the ambit of freedom of speech.
It was held in Schenck v. United States (1919) that the government has the right to prevent the use of words that create the apprehension of imminent danger. The government can prevent the use of such words that incite “clear and present danger.”
The Supreme Court observed ‘obscenity’ to be a ground of restriction to freedom of speech in Miller v. California (1973)where the Supreme Court held that if an ordinary person uses certain words in his work that, by applying modern community standards, incite sexual interests or discuss sexual conduct in a patently offensive manner, the government can put a reasonable restriction on such work when it lacks significant literary, artistic, scientific, political or scholarly merit.
The ‘Miller test’ suggests the presence of three elements whose presence makes a literary or artistic work ‘obscene’. These elements are:
If the work is of such nature that an average person, applying contemporary community standards, finds the work to appeal to prurient interests.
When the work is of a nature that describes sexual conduct in a patently offensive manner.
And when the work lacks any serious literary, artistic, political, or scientific value.
An even stricter interpretation is given to child pornography as a restriction to the freedom of speech. It does not require the elements of the Miller test to be proven for the application of the restriction. If any conduct or expression indicates it to be child pornography by way of a sexual depiction of minors it shall be restricted by the state.
Yet another restriction on the freedom of speech is when words indicate threats to be made against the US President. Title 18, Section 871 of the United States Code forbids threatening the US President with death, kidnapping, or physical harm. This rule applies to the Vice-President and other office bearers as well.
Apart from the abovementioned instances, freedom of speech is also restricted in cases relating to the protection of something regarded as intellectual property. The government may from time to time, expand the horizon of reasonable restrictions as and when it appears necessary to do so.
Right to press
Freedom of the press is a pillar of any democracy as it ensures constitutional validity and adherence. It allows a free and unrestricted flow of information and puts a check and balance on the government’s actions in the state. Therefore, the right to press is guaranteed under the First Amendment to protect it from undue control and pressure from the government. Journalists, news reports, newspapers, magazines, etc., are promoted to disseminate unfiltered and honest information to the public.
The US Supreme Court held in Grosjean v. American Press Co. (1936)that the states cannot levy taxes on newspaper advertising receipts as it is unconstitutional because it hinders the press’ function in forming “informed public opinion.”
The Supreme Court further defined ‘press’ in Lovell v. City of Griffin (1938)as “any type of publication which furnishes a vehicle of information and opinion.”
Right to assembly and petition
The First Amendment of the US Constitution gives its citizens the right to assemble peacefully. The right to peaceful protest is a constitutional right, subject to certain limitations. Similarly, the First Amendment also gives a right to petition the US government for grievance redressal, demand the exercise of authority, and performance of functions. Citizens have a right to reach government officers, seek answers from them, obtain representation from them, and redress their grievances in the way of petitions. These features of the First Amendment guarantee that the US citizens’ voices are heard and their issues resolved by the government and its departments.
Upholding this right, the Supreme Court held in the case of Borough of Duryea v. Guarnieri (2011) that people have the right to assemble to express, pursue, and defend their collective thoughts and beliefs.
Prior to this, the US Supreme Court had also ruled in De Jonge v. Oregon (1937)that the right to assemble is as essential as the freedom to speech and the right to press under the First Amendment to US Constitution.
Right to association
The First Amendment also guarantees a right to form associations in the US. Associations can be religious, political, cultural, etc., and every citizen has a right to be a part of any association without any governmental intervention. Although the right to form associations is not expressly mentioned in the First Amendment, the US Supreme Court held in NAACP v. Alabama (1958) that the right to form associations is an integral part of the rights guaranteed under the First Amendment.
In a recent judgment of Americans for Prosperity Foundation v. Bonta (2021), the Supreme Court held that a Californian law that required revealing the names of wealthy individuals who would be donors to a non-profit organization was unconstitutional and violative of the First Amendment rights of those individuals.
Second Amendment: “right to bear arms”
“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
A rather interesting right that is guaranteed to US citizens by their government is the right to bear arms. US citizens have the right to bear, hold and use arms in self-defense under the Second Amendment to the US Constitution. The civilians can legally possess weapons and they were guaranteed this right without governmental intervention. The idea behind this amendment took its shape as inspired by 16th century England where the Queen required civilians to take part in the national militia and hence, made it legal to keep and bear weapons.
Different perceptions revolve around the Second Amendment rights due to this longline of historical events. Some believe that the right is restricted to a situation of war since the purpose behind its articulation was to form a “well-regulated militia.” While some scholars and experts are of the opinion that in modern society, the right is absolute and protected from government intervention, others argue that the right is not absolute and a civilian can only use arms for self-defense and not otherwise. With these notions in mind, the situation of the state and the military have changed over the centuries. The US military no longer needs civilian participation and wars are no longer common in countries. As such, does the Second Amendment still hold relevance in the present society?
Another legal development relating to the Second Amendment is ensuring equality. Earlier, people of color in American society did not have the same rights as white Americans. This has changed and the Second Amendment and the US Constitution provide equal rights to keep and bear arms to all its citizens alike.
The development of the legal status of gun laws in the US can be better understood with the help of judicial pronouncements:
Initially, it was held in United States v. Miller (1939) that the National Firearms Act of 1934 that the right to regulate and restrict the use of shotguns in specific areas was constitutional. The reasoning behind this judgment was that the Second Amendment gives the right to bear arms for military purposes and not otherwise, and shotguns do not qualify as war weapons. Thus, US Congress can regulate it.
In District of Columbia v. Heller (2008), the US Supreme Court held the District of Columbia Code to be invalid as it barred civilians from owning handguns. This case also clarified that the right to bear arms is a personal right guaranteed to civilians and they can use weapons for self-defense, not just for military purposes. This case further enlisted exceptions to the Second Amendment. Thus, limitations to the right under the Second Amendment are:
Carrying weapons by felons,
Carrying or bearing weapons by a mentally unfit person,
“Sensitive places” like schools, public places, etc., where carrying weapons is not allowed,
Commercial sale of weapons,
Carrying weapons by people otherwise than ‘law-abiding citizens.’
Yet again, in 2016, the Supreme Court in Caetano v. Massachusetts declared a Massachusetts statute invalid that banned stun guns in the state. Thus, the legal status that can be derived from these judicial precedents is that civilians are guaranteed a right to bear weapons in self-defense, without any government intervention as long as they use it lawfully and do not fall within the restricted categories.
As the debate around Second Amendment rights continue, gun violence has increased in the states more than ever. Mass shootings, killing innocents, etc., have become dangerously common in the US due to a lack of government intervention. This gave rise to the recent ‘Gun Control Bill (2022)’ formulated by the US government to put some restrictions on the right given under the Second Amendment as well as to reduce gun violence in the states. Under the Bill, certain laws have been passed as state-specific laws; for more details on US gun laws click here. A right balance between rights given to citizens and the government’s obligation to maintain law and order in society must be maintained. The recent developments to the Second Amendment seem to be much needed.
Third Amendment: “housing of soldiers”
“No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”
Unlike other Amendments in the Bill of Rights, the Third Amendment has not been in question before the US Supreme Court because of the nature of the right it talks about. The Third Amendment right can be dated back to the colonial era and the time of the American Revolution when the practice of quartering soldiers in private homes was prevalent. During wars, the British troops often forced private homeowners in North America to house soldiers during the war, against their will. This was the primary source from which the Third Amendment derived its necessity.
During the drafting of this provision, several arguments arose. The US Congress argued that they will provide housing to states’ soldiers not only during wars but also during peace. Other thinkers believed that it is necessary to prohibit soldiers’ housing in private houses to protect the house owners from forceful quartering as well as loss of property and added risks. Thus, the framers of the Bill of Rights proposed to regulate the right under the Third Amendment. Therefore, the Third Amendment gave the right to house owners to give or not give their consent for housing soldiers. The soldiers could take shelter in private homes only with the consent and permission of house owners during peace and war. The Third Amendment further stated that they shall do so only in a manner prescribed by law. Thus, the states have the power to make regulations in adherence to the Third Amendment while guaranteeing the rights of civilians.
Since this provision is not much relevant in recent years and no disputes have arisen relating to the Third Amendment right, it is often referred to as a right that is ‘forgotten but not gone.’ Due to less relevance, the Third Amendment has often been ignored by lawmakers and its infringement goes unnoticed. During the War of 1812 and the Civil War, American society witnessed infringement of the Third Amendment rights.
As stated before, the Third Amendment has rarely been challenged or scrutinized in the US courts. It has only been a passing reference in rather few cases. However, it was in Engblom v. Carey (1983)where the Third Amendment was discussed by the US court when the New York state government provided housing for National Guard troops in private residences of the government. The court upheld the applicability of the Third Amendment in the instant case as National Guard troops can be categorized as “soldiers.”
Fourth Amendment: “search and arrest warrants”
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Fourth Amendment gives a right to American citizens against unlawful search, seizure, and warrants. It protects civilians from unreasonable search and seizure by making it a mandate that search, seizure, and issuance of warrants must be for lawful reasons recorded. This is known as a “Probable Clause” which states that there must be a substantial amount of evidence and reasoning behind searching a person or seizing their belongings, and it must be done only after the issuance of a legal warrant. Any evidence obtained from unlawful search and seizure or without legal warrants cannot be admitted in courts of law. This is also known as the “Exclusionary Rule.”
Just like all other Amendments in the Bill of Rights, the purpose behind the Fourth Amendment is to protect people from the arbitrary use of powers by the government. Strangely, the US Constitution nowhere specifically talks about the right to privacy of its citizens. However, it is often believed that the Fourth Amendment as well as the Ninth Amendment to the US Constitution does this work and attempt to ensure and provide privacy rights to Americans.
The right of issuance of a legal warrant was upheld by the US Supreme Court in Agnello v. United States (1925). The court held that the right to obtain a warrant does not need to be traced back in history; rather, it is a general assumption that a person’s dwelling and properties cannot be searched without a lawful warrant to do so, except in the case of a lawful arrest.
In another interesting case of Kyllo v. United States (2001), the question before the courts was whether the use of special devices to detect and monitor heat emanations as a part of search operations conducted in a person’s home comes within the ambit of restrictions on the Fourth Amendment. The court decided that it is essential to uphold people’s right to privacy and the use of such devices will create reasonable speculations and apprehensions in people’s minds about government surveillance and their right to privacy being violated. Thus, the use of these special devices for monitoring during search operations shall be restricted by the Fourth Amendment to the US Constitution.
The unrestricted use of force and abuse of power by police forces is the reason behind the articulation of the Fourth Amendment. The Fourth Amendment helps people protect themselves, their houses, properties and important documents, etc., from unlawful search and seizure by the police. It further mandates the issuance of warrants on the occurrence of probable cause. Such warrants must contain all the information relating to the place that will be searched, the articles or documents that the police intend to seize for evidence purposes, etc., and the warrants must be supported by oath or affirmation.
In the case of Weeks v. United States (1914)the police force of Kansas City, Missouri went into the house of Mr. Weeks by using his hidden key. The police did so without Mr. Weeks’ consent and searched the house as well. Further, they seized articles like letters, papers, books, etc., all without the knowledge and consent of Mr. Weeks. The police, while doing so, did not have a search warrant. The collected evidence was submitted in court to prove Mr. Weeks guilty. The court after learning the facts and circumstances of the case decided that the evidence obtained is inadmissible in court as it violated the Fourth Amendment of the US Constitution Bill of Rights. This decision gave birth to the ‘Exclusionary Rule’ where the court held that any search or seizure done without obtaining a lawful search warrant shall be illegal and the evidence collected from such illegal search and seizure shall be inadmissible in a court of law.
The US Supreme Court made an exception to the Fourth Amendment right and the probable clause in the case of New Jersey v. T.L.O. (1985). In this case, the Supreme Court came up with the exception of “reasonable suspicion” for schools and educational institutions with an intent to establish a right balance between students’ rights and appropriate school administration. In the instant case, a schoolgirl was suspected of smoking in the school washroom after which the principal called for her and asked for her purse to be checked. When checked, her purse was found with contraband substances and it was found that she was selling them to other students in the school. This was admitted as evidence and she was held guilty. To this, the girl contended that the search and seizure were conducted without a search warrant, and thus, the evidence is inadmissible as she is protected under the Fourth Amendment. When the case reached the US Supreme Court after appeals, the court decided that this act of the school administration did not infringe upon the Fourth Amendment rights of the student. While the court agreed that the girl is protected by the Fourth Amendment, a balance must be made between her rights and the lawful administration of the school. Thus, the reasonable suspicion shall be a reasonably lower standard of the probable clause and the evidence shall be admissible in court.
The court reaffirmed the stand that the Fourth Amendment rights of students must be balanced with the school administration’s responsibility to provide a safe environment in school. It was decided in the case of Veronica School District v. Acton (1995) where the school authorities implemented a drug test policy for their athlete students. One student refused to take the test and his parents did not consent to the test. Thus, the student was not allowed to participate in the football match. As the student and his family challenged this in court, the court validated the school’s decision by stating the ‘balance rule’ even when students are entitled to the Fourth Amendment rights.
In another case of Safford Unified School District v. Redding (2009), the school officials conducted a strip search of a female student on the apprehension of finding some pills that she had given to another student as well. The court held this action of school administration to be violative of the US Constitution and the Fourth Amendment to it, which is guaranteed to the female student. This is because this action of the school administration cannot be said to be a reasonable suspicion. There is no reason to believe that the female student hid the pills in her undergarments and thus, conducting the search without her consent is unconstitutional. Therefore, it can be observed that the court, through its judicial precedents, aims to strike a balance between rights and duties.
Fifth Amendment: “rights in criminal cases”
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Historically the most famous member of the Bill of Rights, the Fifth Amendment is the most invoked in the US. This fame is justified as the Fifth Amendment provides protection to US citizens against self-incrimination, especially to those facing criminal charges and undergoing trials. It embodies the “right to remain silent” as the government cannot force an individual to give statements that will incriminate himself. Thus, when a person “takes the fifth” during criminal trials and proceedings, he or she has the right to refuse to answer questions or render information that will be used against him or her.
The Fifth Amendment can be invoked only in the following circumstances:
When a person is compelled to answer questions or in any other procedural requirements during the trial proceedings.
This compelled communication is testimonial in nature, that which is related to express or implied assertion of facts and beliefs.
Such testimonials must be self-incriminating in nature.
An exception to the Fifth Amendment right is that a person who has been previously convicted for a crime or has been sentenced by any court of law cannot invoke the Fifth Amendment.
Such silence by invoking the Fifth Amendment cannot be used against him to establish guilt. Remaining silent shall not be pursued as guilt in any US courts.
The Fifth Amendment right guaranteed to US citizens can be divided into the following categories or elements:
Grand jury presentment
As the first part of the Fifth Amendment reads, a person shall not be presented to answer for a crime of greater grievousness or which involves capital punishment unless their case is presented to a grand jury. An exception to the grand jury requirement is when the crime involves a person from the naval wing, military, or anything that involves a situation of war and the defense of the public. This part of the Fifth Amendment includes assessing the seriousness of the crime and whether or not it involves a violation of state or federal laws. The purpose behind this part of the Fifth Amendment is to ensure the unbiasedness of the jury while serious charges are levied against him. This is usually done by a prosecutor who presents compelling evidence before the grand jury and it is then the jury that decides whether a case against the alleged person is made.
Double jeopardy
The second part of the Fifth Amendment right speaks about the prevention of double jeopardy. It states that no person shall be punished twice for the same offense. In a jury trial, double jeopardy often comes into the picture as soon as the jury is empaneled. In a bench trial, double jeopardy applies from the moment the first witness is sworn in a case. The right against double jeopardy has also been upheld by the courts through judicial precedents, such as Downum v. United States (1963)and Crist v. Bretz (1978). In these cases, the court upheld the constitutional right against being punished twice for the same crime.
However, there are certain exceptions to the rule of double jeopardy, for example, cases that are wrongly decided, acquittal by fraud or misrepresentation, a gross violation of natural justice, etc. This was the expansion of the rule of double jeopardy. It was supported by the judicial precedent of Martinez v. Illinois (2014).
In Blockburger v. United States (1932)the court reaffirmed that the right under the double jeopardy rule is not absolute. Thus, a person who breaks two different laws in one wrongful act shall be tried for both charges and not just once. He shall not be protected by the rule of double jeopardy.
Self-incrimination
Rightly the most crucial part of the Fifth Amendment, it protects citizens’ right against self-incrimination, especially in criminal trials and proceedings. Self-incrimination is when a person indicates his own involvement in a crime, thereby subjecting himself to punishment and prosecution by his own words and statements. Thus, when a person gives a statement that would levy charges against himself (incriminate him), he is said to be subjected to self-incrimination. The Fifth Amendment provides individuals with the right against self-incrimination by providing them the right to remain silent by invoking the Fifth Amendment.
A person can invoke the Fifth Amendment when he is called as a witness. When questions are asked by the prosecutor in an attempt to establish guilt, the witness can take the Fifth and remain silent. He can refrain from sharing information that is self-incriminatory in nature, even when that information is relevant in the present case. The Fifth Amendment provides protection against forceful action of the government, prosecutors, judge or jury, or any other official and department of the government from extracting self-incriminatory statements from a person which will subject him to criminal trials.
It is, however, the choice of the defendant if they wish to waive this privilege guaranteed under the Fifth Amendment. Such waiver shall not be subject to penalty. It is pertinent to note that the right against self-incrimination only applies to testimonies, verbal questioning, or grand jury requests. The privilege does not apply to documentary evidence or other forms of evidence. For example, if a person is asked by the court to produce blood samples, hair samples, go through a handwriting test, or voice recordings, etc., he cannot invoke the Fifth Amendment right and refuse to do so.
Further, a right against self-incrimination rises in civil, administrative as well as grand jury proceedings, if and when it is invoked by the defendant or a prospective defendant. In civil cases, the Fifth Amendment applies to certain situations, for instance, issues related to tax and tax documents.
The US Supreme Court in the case of Chambers v. Florida (1940) held that the Constitution of the US does not allow forceful self-incrimination. The law stands the same for all, without any discrimination on the basis of color, creed, religion, nationality, etc. The judgment came at a time when people of color in the US suffered due to racial discrimination. In the instant case, four black men were forced to give statements that levied murder charges against them under force and imminent danger. This case did not entirely improve the lives of blacks in the US but it was an essential precedent that put a check on the arbitrary use of power by the police department which violated the US Constitution.
In Ashcraft v. Tennessee (1944), the state law enforcement officials subjected a suspect to a 38-hours long forced interrogation. This was followed by a forceful confession by him. However, the Supreme Court overturned the conviction since the interrogation process was conducted and the confession was obtained by force.
Yet another landmark judgment that talks about the Fifth Amendment right is the case of Miranda v. Arizona (1966). The case involved a custodial investigation by police officers, detectives, and prosecuting attorneys in a closed room entirely cut off from the rest of the world. The primary issue, in this case, was that the defendants were not given appropriate and complete information about their rights and privileges during the interrogation process and during trials. After this, Miranda was made to give an oral statement and a written confession was signed and presented before the jury. This confession was used as evidence that sentenced Miranda to 20 – 30 years of imprisonment after finding him guilty of kidnapping and rape. The issue before the court was whether the confession obtained by a custodial interrogation by police was admissible as evidence in court to convict the suspect and whether the Fifth Amendment right is applicable in the instant case or not. The Supreme Court held that the right under the Fifth Amendment is not confined to criminal proceedings alone but extends to all circumstances which involve or indicate the involvement of a person’s right against self-incrimination. Thus, custodial interrogation where a person is taken into custody for questioning, depriving the person of his freedom of action, will come within the ambit of protection of the Fifth Amendment. The court further stated that when a person is not pre-informed of his rights during the interrogation process, such as the right to remain silent, right against self-incrimination, etc., it puts him under unfair pressure to harm himself. With this case, the Supreme Court reversed the initial ruling that convicted Miranda. Along with this, the Supreme Court reversed two other judgments, Vignera v. New York (1966) and Westover v. United States (1968), and upheld the judgment in the case of California v. Stewart (1965), all the cases having similar facts and circumstances.
Due process
One of the essential parts of the Fifth Amendment as well as the US Constitution is its ‘due process clause.’ It states that a person in the US shall not be deprived of his rights, liberties, life, and of property without the due process of law. The due process clause is discussed in the Fifth Amendment as well as in the Fourteenth Amendment of the US Bill of Rights. The due process clause under the Fifth Amendment applies to and discusses the due process applicable to the national/federal government. The Fourteenth Amendment of the US Bill of Rights deals with the due process applicable to state governments.
The ‘Due Process of Law’ clause can be analyzed and understood with the help of its two theories, the ‘Fair Procedures Theory,’ and the ‘Legal Procedures Theory.’ The Fair Procedure theory states that the due process of law should be such that it is procedurally fair and just. It focuses on the fact that the procedures followed to guarantee justice shall also be just and fair. This theory is reflected in the case of International Shoe Company v. Washington (1945) where the court articulated the phrase “fair play and substantial justice” based on the Fair Procedure theory. The court observed that the due process of law is said to be followed when trials are called following the existing laws of the land and it keeps changing with changing times.
The second theory, i.e., the Legal Procedures theory talks about legal requirements in any case or trial. It states that due process of law is when it is permitted by positive law or when the procedures followed are in accordance with positive law. This theory further deviates into two categories of positive law, one which talks about contemporary positive law and the other talks about positive law during the framing of the US Bill of Rights, 1791. Contemporary positive law in due process of law means that the positive law which was in effect at the time of the violation of a right or occurrence of an offense shall be taken into account. The other category states that the positive law prevailing at the time of framing of the US Bill of Rights shall be followed at all times.
It was observed that both these theories had lost certain relevance with changing times. Therefore, a third theory was articulated known as the ‘Process Theory.’ ‘Process’ in its general sense means a series of operations, a definitive/prescribed manner, and obtaining a result by following the prescribed manner. The beginning of any legal proceedings or trials, manner of proceeding, such as sending summons, calling witnesses, admitting evidence, etc., that takes place until a case is decided by the court of law. It includes different procedural requirements, such as sending a legal notice to the defendant, informing him of the charges, rights, obligations, liabilities, etc. It may include the authority to do certain things, such as the authority to enter a place, search with a search warrant, and seize objects for evidence purposes. It includes informing people under trials of their rights, such as the right against self-incrimination, the right to seek legal assistance, the right to be heard, etc.
The due process clause under the process theory states that no person shall be deprived of their life, properties, and liberties without the service of a valid process, notice, and in the proper jurisdiction. The due process of law is also referred to as the “original process” for summons, notices, etc., as is mentioned under Rule 4 of the Federal Rules of Civil Procedure.
The essence of the Due Process of Law clause of the Fifth Amendment is that American citizens be subjected to a fair and just system and procedure before the government gets the right to deprive them of their life, property, or liberty. Due process of law is said to be followed when established rules and principles of law for the protection and enforcement of private rights are followed in legal proceedings, which includes the right to receive proper notice and a right to a fair trial before deciding a case. Due process of law entails justice and fairness in both substantive as well as procedural law. It also requires legislation, rules, principles, and doctrines to be fair and reasonable to people’s legitimate needs. This is termed the substantive fairness of the law. Substantive fairness refers to maintaining a just way of drafting, enacting, and implementing different legislation. Other aspects of trials and proceedings which have been discussed above, such as sending notices, summoning witnesses, etc., are parts of procedural fairness of the due process of law.
It is imperative to mention the landmark judgment of Miranda v. Arizona (discussed above) while discussing the due process of law. This case established “Miranda warnings” as a part of the due process to be followed while deciding a case. It stated that the right against self-incrimination shall include the following rights, as was discussed in Miranda’s case:
The right to remain silent.
Anything said by a person can be used against him in a court of law.
The right to be represented by an attorney.
If the person cannot afford to hire an attorney, the government shall appoint one for him as a matter of legal right.
It is the responsibility of government officials, legal officers, and investigating officers to inform people who have been summoned or are in the custody of their rights. Giving Miranda warnings to a suspect at the start of a trial is considered part of their constitutional right and, thus, part of due process of law. After Miranda warnings are given, the suspect has a right to invoke his Fifth Amendment right and opt out of answering self-incriminatory statements. He can also waive his rights under the Fifth Amendment at his will. This decision of invoking or waiving rights can come only from an informed decision. Thus, the due process of law must be followed at every stage of the proceedings to guide the people involved in a case in making informed decisions and to uphold the values of fairness, reasonableness, and justice. If any of these stages of procedural fairness are not met, the exclusionary rule will come into existence, and evidence collected without following due process will become inadmissible in a court of law.
Just and fair compensation for taking private property
The Fifth Amendment ends with the right of landowners and property owners to extract compensation from the government in situations when the government takes over their properties for public use. The government, through its power of “Eminent Domain,” has the right to take private properties for public use. The power of eminent domain can be used by the government when it wants to acquire the private property of any individual. However, the government can exercise this power only when the acquisition is done for public use and welfare. Even so, the government is obligated to pay a fair compensation to the previous owner of such land or property in exchange for the acquisition. If all these essential factors are met, the government can exercise its power of eminent domain. Under this power, the government does not require to take the consent of the property owner. Reflecting on ‘fair compensation,’ compensation is considered to be just and fair when it is equivalent to the fair market value of that property. The principle was reaffirmed in the case of Kelo v. City of New London (2005) where the government took the private properties of certain individuals to make a development project there. This act of the government was considered to be for public use since those owners enjoyed the economic benefit of such a development project.
It is a common conception that the eminent domain power of the government is restricted to land. However, in fact, it extends to every form of private property that the government can acquire and have to pay a fair compensation in exchange for such acquisition. For instance, the eminent domain and fair compensation principle extend to animals, crops, etc., as well. It also includes leases, mortgages, etc., as well as intangible assets like copyrights, trademarks, etc. This concept of fair compensation, under the Fifth Amendment, is also known as the ‘Taking clause.’
Once the eminent domain is exercised, the existence of a regulation of taking is checked thereafter. It is determined whether the government’s taking is legal. In the case of Pennsylvania Coal Co. v. Mahon (1922), the court held that a government regulation shall not be considered a ‘taking’ unless it is backed by damages at the value of the property. In the absence of just compensation, the government’s taking cannot be said to be legal as it infringes upon people’s rights of private ownership.
The economic impact of the government regulation on the private owner must be taken into consideration,
Degree of interference of the regulation on the owner’s “distinct investment-backed expectations” from the land or property, and
The nature of government action.
These factors are used to determine the burden on the owner of the property whose property the government intends to take.
Once the government taking is validated, the final stage is to determine whether the compensation is paid and whether the amount paid is fair. It was held in Kohl v. United States (1875) that the government’s action of taking property under the power of eminent domain is valid when the owner of the property is compensated fairly. Fair compensation is determined in accordance with the size of the area taken by the government.
Sixth Amendment: “rights to a fair trial”
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The Sixth Amendment under the US Bill of Rights talks about a system of ‘fair trial.’ Every accused in judicial custody, or undergoing trial, has the right to a speedy, public and fair trial. A public trial is added as an essential under the Sixth Amendment because it ensures transparency and impartiality. The accused has a right to be heard by an impartial judge and be considered innocent until he is proven to be guilty. Further, this Amendment also emphasizes that no case should be heard without adequate jurisdiction. Most importantly, the Sixth Amendment focuses that nobody should be put through the trial proceedings without first informing him of his rights as a person in custody and under trial. He shall also be informed about the charges against him, in detail. Further, due process of law must be followed in deciding every case. The accused has the basic right to gather witnesses in his favour and also to cross-examine the witnesses against him. The accused must have the aid and assistance of a legal counsel at all stages of proceedings. If the accused is financially incapable of hiring an attorney, the state must provide him with one free of cost.
The Sixth Amendment of the US Bill of Rights is inspired by the principle of “justice delayed is justice denied.” It provides essential rights to those under trial and maintains a balance between individual rights and the state’s powers. The Fifth Amendment talks about the duties of the federal government and the Fourteenth Amendment about those of the state government. Thus, they protect the Sixth Amendment rights. The rights under the Sixth Amendment are:
Accused’s right to a speedy and public trial
Every accused has certain basic rights. Those rights are provided to him through the Sixth Amendment of the US Bill of Rights. One such right is the right to be subjected to a speedy trial and a public trial. A public trial ensures justice, transparency, and impartiality. A speedy trial is based on the concept of “justice delayed is justice denied.” The idea behind providing these rights to the accused is that nobody should be discriminated against even when they are facing charges in a proceeding. The accused must be given an adequate and equal opportunity to present and fight his case so that justice is ensured.
The Supreme Court prescribed a four-phased method to determine whether the speedy trial rule has been infringed. The four determining factors, as decided in Barker v. Wingo (1972) are:
First, the court reviews the length of delay,
Further, the court reviews the reason for the delay,
After that, the court examines the presence and credit of the defendant’s rights, and
Finally, the court balances these factors in favor of the defendant/accused whose right under the Sixth Amendment stands violated.
It was held in Strunk v. United States (1973) that when these phases of scrutiny are performed and an infringement of the speedy trial rule under the Sixth Amendment is found, the court either reverses the judgment or dismisses the indictment.
Accused’s right to be heard by an impartial jury
Voir dire in French means “to speak the truth.” This ideology is relevant and famously used in the US in determining a fit, proper and just judge. It involves a preliminary examination of a prospective juror by a lawyer or judge to decide whether he is fit to become a judge. His qualifications, qualities, and suitability are under scrutiny. This is done to ensure that trials and proceedings in the US courts are conducted in an impartial manner, free from bias and other shortcomings.
The juror’s acceptability and suitability for a particular case are examined by asking them essential and relevant questions. Upon satisfactory answers, the juror is selected and assigned to hear and decide on a case. The suitability of a prospective juror is tested based on his background, values, and belief system as well as experience. Further, the selection procedure must be free from bias and discrimination. The examining judge or lawyer must be impartial and make no difference based on the prospective jurors’ race, ethnicity, color, cultural background, etc. The accused is given this right to be heard by an impartial jury. A judge or jury’s impartiality is determined on the basis of their approach in deciding on a case. If they resort to an unbiased approach in hearing both parties’ contentions, admitting evidence, and hearing witnesses in a lawful manner while following the due process of law, the judge or jury can be said to be impartial.
Accused’s right to know charges and cause of charges
A person accused of a crime has the right to know the ‘why’ and ‘how’ about it, meaning an accused person has the right to know why he is accused, under what charges, and for what crimes. He has a right to know the cause of such an accusation. He has the right to know his rights regarding the same and he has the right to know the procedures that will follow. The information related to charges framed against an accused must be given to him with specific details. He should be made aware of the possible implications of it. Specificity implies informing the accused of the specific sections and provisions of the specific legislation under which charges against him are framed.
This part of the Sixth Amendment right of informing the accused of the charges against him is otherwise known as the ‘Notice Clause’ under the Sixth Amendment. However, the notice clause is limited to informing the accused about the charges framed against him. It does not speak about the manner of trial and purpose behind adopting this manner in detail. This is specified by different provisions of different US legislation along with the supreme law of the land, i.e., the US Constitution. For instance, a federal crime is heard and decided by a grand jury, as has been mentioned under the Fifth Amendment of the US Bill of Rights. This requirement will vary for a lesser crime as well as be different in different states.
Accused’s right to confront witnesses against him
The accused person has a right to confront people who are willing to testify against him. This part of the Sixth Amendment is known as the ‘Confrontational Clause.’ The accused person, under the confrontational clause, has a right to appear before the people who are willing to testify against him and ask questions to them with the intent to cross-examine the witnesses. Thus, this clause can be classified into two parts: confronting the witnesses and cross-examining them.
As a part of the confrontation, the accused has a right to appear and be present in all trial hearings against him and while the case is being decided. This forms a part of the due process of law clause under federal as well as state laws and regulations. The Federal Rules of Criminal Procedure 43 talks about the defendant’s presence, when it is necessary and mandatory, when it is not necessary and when the defendant can waive this right to appear and be present. The other part of this right of the defendant is the right to cross-examine the witnesses against him. This right is given as a part of ensuring the defendant a right to make his case and prove his innocence (plea of not guilty).
However, there are three exceptions to this confrontation right of the defendant:
An exception is made for minors and/or special categories of people who may suffer harm due to the confrontation with the defendant.
An exception on statements made by a person on his deathbed who was aware of the fact that he is dying. This is because it is presumed that a dying man has no reason to lie.
An exception on the statements made by a person who was detained or kept away by the procurement of the defendant.
Accused’s right to call for witnesses in support
Every person who is accused of committing an offense has the right to call for witnesses in his support. The people whom the defendant wishes to call to appear as witnesses are bound by a legal force. While they can appear voluntarily, they have to appear even in instances where they do not wish to. This is because of the compulsory nature of this clause. The witnesses are under a legal obligation to appear in court when called upon to do so. The court can exercise its power by sending warrants or subpoenas to summon these witnesses.
The purpose behind granting this right to a defendant is to ensure him a fair and square chance of presenting his case and making his plea of not guilty. The defendant has a right to present the facts and circumstances of the case from his perspective and make his defense. This process often requires the backing of witnesses. It is only when both the prosecution and defendants make their contentions that the jury can decide on the case. This right also ensures an equal opportunity to the defendant as given to the prosecution to make their case and present witnesses. This forms a fundamental part of the doctrine of due process of law.
Accused’s right to seek legal assistance and representation
Every person alleged to have committed an offense has the right to seek legal assistance and their case be represented in a court of law. If the accused is financially ineligible or, for any other reason, is unable to hire an attorney to represent his case, it is the duty of the government to provide him with legal assistance. It was held in Gideon v. Wainwright (1963) that a defendant has the right to be legally assisted by a lawyer appointed by the court at the cost of the government.
It becomes the duty of these court-appointed lawyers to represent the case of the defendant, should the defendant choose to go to trial. It is also the duty of these lawyers to inform the defendant about the consequences that will follow if they choose to plead guilty or make a confession. They are under an obligation to give necessary legal advice to the defendant with his good in mind. The court bears and provides legal assistance to a defendant when his indigency is proven. For the defendant’s ease and to ensure that justice is not denied or delayed due to financial constraints, the court additionally waives certain court fees and filing charges for the defendant.
Furthermore, to ensure justice and equality, the Sixth Amendment goes on to say that merely providing legal assistance to the defendant is not enough. The appointed lawyer for the defendant should be equal in qualifications, skills, experience, etc., to that of the prosecution lawyer. A two-step test was framed in the case of Strickland v. Washington (1984) to determine the effectiveness of the court-appointed lawyer:
Whether the lawyer’s actions were reasonable, and
Whether those actions proved to have helped the defendant’s case in the final hearing.
Seventh Amendment: “rights in civil cases”
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
The Seventh Amendment of the US Bill of Rights talks about the formal rules that govern civil trials in the US. It establishes a firm categorization between the role of courts and that of jurors. It affirms that facts decided by a jury shall not be subjected to examination by any court in the US unless required. The Seventh Amendment was framed essentially at a time when the common law system prevailed in the West. This is reflected in the drafting of the provision which states that common law rules shall be followed in civil trials and in necessary re-examinations.
Two kinds of court and judicial systems prevail in the US: the federal court system and courts in each state. The provisions of the Seventh Amendment apply only to federal courts. This is an interesting and unusual provision that has been prevalent since the beginning of the articulation of the Seventh Amendment. Since the Seventh Amendment does not apply to states, it is excluded from the purview of the due process of law clause established under the Fourteenth Amendment as it applies to states. However, provisions of the Fifth Amendment apply to the Seventh Amendment. This is the only exception that has been made for states, as they are required to follow every other provision of the US Bill of Rights similar to the federal court. However, the states have the liberty to make provisions for civil jury trials in their state constitutions and abide by those rules.
The Seventh Amendment is divided into two parts: the first part is popularly known as the ‘Preservation Clause’ and the other part is the ‘Re-examination Clause.’ The preservation clause speaks about the types of cases that are subjected to be decided by civil jury trials. These are the cases whose pecuniary limit exceeds twenty US dollars. The re-examination clause prevents federal courts and judges from examining facts decided by civil jury trials. Further, common law today means the law observed by the judges instead of the law made by legislators. However, in the context of the Seventh Amendment, common law is laws, rules, and procedures made by the courts where the jury system prevailed instead of laws, rules, and procedures followed in equity and other courts. The Supreme Court further held in Dimick v. Shiedt (1935) that the common law referred to in the Seventh Amendment is the common law system that prevailed in England (because of British origins of the concept) during the times of ratification of the US Bill of Rights, i.e., 1791. Currently, six jurors form part of a civil jury in the US.
The civil jury system has become extinct for the rest of the world. It can be seen only in rare situations. Issues with the civil jury system are the long and expensive procedures involved in it. The outcome of a civil jury system becomes unpredictable because of the number of jurors involved in it. Parties instituting a suit often wish to refer their cases to judges for decision. The Seventh Amendment can in no way revive this system which is disappearing because of its shortcomings. Therefore, lawmakers and experts often suggest repealing this Amendment. Another reason for such a suggestion is the British colonial roots of this system. It seems almost irrelevant to present-day America.
Eighth Amendment: “bails, fines and punishments”
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The Eighth Amendment of the US Bill of Rights talks about bail, fines, and punishments. Bail, in its simplest terms, means the release of a person from prison with a promise and surety that the person released on bail shall appear in court whenever he is called to do so. In the US, bails are of four kinds: release on one’s own recognizance, cash bail, release on a cash bond, and release on a property bond. While the latter three kinds require a form of security collateral to release a person, bail granted on one’s recognizance is based on a promise and signature of the released person for appearance. When a person is released on bail, he is allowed to live within a specific territorial community and appear in court when his case is scheduled for hearings.
As the name itself suggests, a person will have to have a good ‘recognizance’ to be released on it. It is the discretion of the court whether or not to grant such bail. The court decides on it by looking into the criminal history, background of the accused, the gravity of the offense committed, his reputation in the community he lives in, and credibility in adhering to the agreed terms. Even when the bail is granted, it comes with certain restrictions that the court imposes. These restrictions are imposed at the court’s discretion in reference to the facts and circumstances of each case. The most common ones include restricting the accused from contacting the victim in any way, restricting the accused from moving out of the territorial jurisdiction of the court, etc. The concept of bail is based on the doctrine of “innocent until proven guilty.”
The second form of pleading for release on bail is in the form of cash bail. In a cash bail, a sum of money is deposited to release the prisoner. This money acts as security collateral to release. The issue with cash bail is that not every defendant can afford it. Many people in US jails are imprisoned due to the fact that their cases are pending in courts because of probation, parole, or because they cannot afford a cash bail.
This gives rise to another way of availing of bail, i.e., in the form of bail bonds. A bail bond is an instrument used to release a person from prison in which only a particular amount of the bond is paid to release. This amount is used as collateral security. This is supported by a person who acts as a surety for the person released on bail. Usually, the person himself pays a small percentage (mostly 10%) of the total bond amount. Thereafter, he is released. A person acts as his surety and promises to pay the remaining amount of the bond should the accused fail to appear in court whenever he is needed to.
Fines
This part of the Eighth Amendment is called the ‘Excessive Fines Clause.’ This clause protects the accused from suffering due to excessive fines imposed on him by courts. This clause refers to the fines imposed upon conviction in criminal cases. Different codes, rules, statutes, and legislation prescribes different fines and penalties for different crimes. Punishments are inflicted upon conviction in a case. These punishments vary between imprisonment, capital punishment, probation, parole, or in the form of fines. Usually, crimes of less grievousness, such as thefts, non-violent crimes, etc., are punished with fines. This is referred to as a pecuniary penalty payable to the government’s treasury.
The court defined an excessive fine in the case of United States v. Bajakajain (1998) as a fine imposed which is disproportionally high in comparison to the offense committed. It also stated that, in addition to restricting fines at a reasonable level, the court must also ensure that the other forms of punishments imposed for a crime are proportional to the offense committed.
The court enlisted three factors that a court must take into consideration before imposing a fine. It was held in the case of United States v. Jose Parks (2007) that the factors are:
Whether the statute/code which prescribes a fine was drafted to punish the accused.
The court looks into the aggregate amount of other penalties approved by the court that is to be paid by the accused.
The seriousness of the crime or the harm he has caused, to check proportionality.
The court determines the fairness of the fine imposed after looking into these factors in the facts and circumstances of each case.
Punishments
Often referred to as the most essential part of the Eighth Amendment, it states that the courts must not impose unusual or cruel punishments on a convicted person. A “cruel and unusual punishment” is defined as a punishment that is torturous, degrading, inhuman, grossly disproportionate to the offense committed or shocking to the morals of a community. [Weems v. United States (1910).] Because of the nature of this provision, it is difficult to determine the degree of punishment that can be categorized within the ambit of “cruel and unusual.” Debates often run around the question, ‘how cruel is unusual?’
As the debate continues, it surrounds the death penalty, capital punishment, and cases that are eligible for these punishments. Thus, this divides the American justice system and its believers into two categories: those who believe that the death penalty/capital punishment is just and proper punishment given the gravity of qualifying cases and those who believe it to be cruel and unusual. As the death penalty/capital punishment continues to be legally inflicted upon certain criminals, opposition often raises questions, like, ‘does the person who has been punished with a death penalty/capital punishment have the right to choose the way he should die?’
In the case of Solem v. Helm (1983), the Supreme Court stated certain factors that must be taken into consideration to determine proportionality:
The seriousness of the offense should be considered.
The degree of harshness of the punishment/penalty.
Cases of similar nature within the same jurisdiction and the degree of punishment inflicted thereon.
The court shall also consider the punishments imposed in different jurisdictions on similar offenses and on different offenses.
While proportionality is seen as a determinant of inflicting punishment, the reality often differs. The courts pronounce judicial precedents from time to time and base their decisions on the proportionality test. The Supreme Court, in the case of Harmelin v. Michigan (1991) overturned the prohibition on disproportionality that was imposed. It only stated that the possibility of parole shall not be taken away as that would be unconstitutional and violative of the Eighth Amendment.
The court further held in the case of Lockyer v. Andrade (2003) that proportionality is not a myth. However, it is to be taken into consideration in extreme cases that are exceedingly rare. It shall not be used as a general norm. The court further upheld this decision in the case of Miller v. Alabama (2012) where it was decided that not granting the right to seek parole in cases involving juveniles is constitutionally invalid and violative of the Eighth Amendment.
Additionally, the Eighth Amendment also provides protection to prisoners by granting them certain basic rights while in prison. These rights include guaranteeing a safe environment and living conditions to prisoners, providing appropriate healthcare, hygiene, protection against sexual assault inside the prison, etc. The prisoners are entitled to human conditions even in confinement and they are entitled to adequate food, clothing, shelter, and healthcare. This was held by the court in Farmer v. Brennan (1994).
Ninth Amendment: “rights retained by the people”
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
As the words themselves suggest, the Ninth Amendment is often seen as an ambiguous and vague part of the US Bill of Rights. Different scholars suggest different interpretations of it. The Ninth Amendment aims to suggest that the presence of certain rights by virtue of the US Constitution shall not be a reason to deny the existence and retention of some other rights by people. Thus, it emphasizes certain additional rights that an individual might possess. The Ninth Amendment aims to establish that rights people are entitled to are not limited to the US Constitution and its amendments.
The purpose behind the articulation of the Ninth Amendment is to affirm the fact that the rights guaranteed to individuals in the US are not confined to those enumerated in the US Constitution. The enumerated list of rights is not exhaustive and final. Rather, it is inclusive. Often it so happens that a right is not explicitly mentioned in the US Constitution but it is guaranteed to US citizens by ways of judicial precedents and legal interpretations. For instance, the US Constitution does not anywhere talk about the fundamental right to privacy. However, courts have had a practice of guaranteeing the right to privacy to their people.
In the case of Griswold v. State of Connecticut (1965), the US Supreme Court held that married couples have a right to use birth control. This right shall not be infringed upon or intervened by the government or its officials. The court observed that, apart from the enumerated rights in the US Constitution, there are other fundamental rights that a citizen is entitled to have. Such rights can be enjoyed free from government intervention. These rights coexist along with those enumerated in the US Constitution. Citizens shall not be deprived of enjoying these fundamental rights simply because they are not codified in clear words in the US Constitution.
This right to privacy has recently been under controversy as the US Supreme Court overturned the years-old Roe v. Wade (1973) judgment that gave the right to abortion to women as a part of their right to privacy. Roe v. Wade firmly established the right to privacy as a fundamental right guaranteed to all US citizens. However, this was overturned in the case of Dobbs v. Jackson Women’s Health Organization (2022) which gave the state governments of each state a right to make laws governing/banning abortion rights in their respective states.
Tenth Amendment: “powers retained by the states and the people”
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The first part of the Tenth Amendment talks about political power, the power to make rules and to look into the governance of a state and the country as a whole. The Tenth Amendment states that the powers that are neither delegated to the federal government, state governments, or any branches of the government are known as reserved powers. As these powers are not specifically delegated to any of the abovementioned authorities, the Tenth Amendment suggests that the reserved powers are vested in state governments for their particular state.
The framing of the Tenth Amendment was strategically done so as to omit the word ‘expressly’ before writing ‘delegated’ because that would render a narrow interpretation of the purpose of this Amendment. Thus, powers that are either expressly or impliedly delegated to the federal government and its departments distinguish themselves from those that remain. These remaining powers (reserved powers) are deemed to be vested in the state governments or directly to the people.
The Tenth Amendment is based on the doctrine of the ‘separation of powers.’ The US Constitution recognizes the need for separation of powers between different departments and governments in the US in order to maintain a balance of powers between the federal government and the state governments. This right was adopted in the time of framing of the US Constitution as the drafting and enactment of the US Constitution gave rise to fears in the minds of the state government officials and anti-federalists that a large chunk of power would be in the hands of the federal government. They feared that the state governments and other branches would become mere actors of the federal government. The Tenth Amendment gives a right to the state governments to make, enact, and implement laws of their own governance to run their states, provided that these laws do not conflict directly with federal laws or any provision of the US Constitution.
A similar right has been given to states by the 2022 controversial judgment of Dobbs v. Jackson Women’s Health Organization which overturned the 1973 landmark judgment of Roe v. Wade. as a result of this, the state governments have acquired a right to intervene in the abortion rights that were previously guaranteed to women without any government intervention. As a consequence, some states have banned the right to medical termination of pregnancy completely in their state, making it illegal while others have regulated the gestation period of allowing the abortion. States like Texas and Alabama have banned abortion entirely. Some other states, like Washington D.C. and Alaska continue to give abortion rights to their citizens. States such as California and Nevada have set a limit of 24 weeks of pregnancy beyond which abortion is illegal.
Just as in this instance, rights guaranteed under the Tenth Amendment can be controversial and subject to judicial interpretations. However, it forwards a cause of striking a necessary balance between the federal government and the states. The Tenth Amendment can be seen as striking chords between restricting the powers of the federal government while also recognizing the supremacy of the federal government and the US Constitution and respecting them.
Conclusion
The US Constitution is the supreme law of the land. It is the primary document that governs the rights, liberties, and obligations of US citizens. It describes the powers and responsibilities of the federal government, state governments, and different branches of the state. It prescribes substantial as well as procedural fairness. The US Bill of Rights (1791) is the list of the first ten Amendments brought to the US Constitution to improve these rights and duties. The Bill of Rights guaranteed essential rights to the citizens and restricted the powers of the government by limiting their interference in certain matters and rights. It provides essential rights such as the right against double jeopardy, the right against self-incrimination, the right against cruel and unusual punishments and excessive fines, etc. It also talks about the residual powers in the form of reserved rights. These residual powers are left to the discretion of state governments in each state. These are the powers that are not delegated to the federal government, and hence, their interference is restricted.
The US Bill of Rights was formulated in a time of war and in ancient America. Therefore, it is essential that the Bill of Rights and its provisions be updated with the changing societal needs. For instance, the Third Amendment which is often referred to as the forgotten part of the Bill of Rights as it talks about the rights of people against the housing of soldiers without their will could be modified to the present-day needs of diplomatic relations in the US. Similarly, industrialization and economic development have given rise to new opportunities as well as challenges. Additional provisions can be made to ensure protection and guarantee rights in the new world. For instance, the fundamental right to privacy which was guaranteed to US citizens has come under debate and ambiguity in recent times. Efforts need to be made to address this issue. In a 21st-century world where the US being a leading country in global governance and power, regressive decisions and scrapping people’s rights can be seen as unsuitable examples. Thus, efforts must be made to avoid this by incorporating satisfactory and necessary provisions in the supreme law of the land.
A similar praiseworthy instance can be seen in the form of the Gun Control Bill that has been under debate in the US Parliament. The Second Amendment of the US Constitution gives US citizens the right to bear and keep weapons. This right is absolute in nature without any government intervention. The same has resulted in turmoil in the US as gun violence excessively increased and resulted in a state of mass killings and innocent murders. To address this serious issue, the government has come up with a Gun Control Bill to regulate the existing laws. This might mean that the absolute restriction on the government’s intervention in the Second Amendment rights of US citizens can be witnessed to be modified in the recent future. Although the Second Amendment means otherwise in its current form, changing needs demand changed measures. This is to ensure equity and justice in society and run a peaceful administration.
Frequently Asked Questions (FAQs)
What are the “unalienable rights” that the United States Bill of Rights proposed to ensure to US citizens?
The United States Bill of Rights proposed to ensure the following rights as unalienable rights because these rights are naturally given to the citizens and they cannot be taken away by government action:
The freedom of religion,
The freedom of speech, expression, petition, and assembly,
The freedom of the press,
Privacy rights from government’s intervention and intrusion,
Due process of law, and
Equality before the law.
What made the US government add the Bill of Rights to its Constitution?
The initial document of the US Constitution was flawed and discriminatory. It gave unrestricted powers to the federal government. This would have led to arbitrariness and abuse of power and excessive power in the hands of the federal government. It also meant that the state government would have little or no power. Due to this fear and opposition from anti-federalists (people who opposed unrestricted federal powers), the state governments refused to ratify the US Constitution unless it rectified its flaws by adding a Bill of Rights that would limit the power of the federal government and striking a balance of powers between the federal government and the states. Hence, the Bill of Rights was adopted.
What are the three basic rights and values upon which the US Bill of Rights is based?
The US Bill of Rights is based on three basic values in the form of rights: the right to life, the right to health care, and the right against or freedom from torture.
What were the issues with the initial draft of the US Constitution that the Bill of Rights addressed?
The initial draft of the US Constitution lacked a list of individual rights that the citizens shall be entitled to have. It was also discriminatory in nature as it was applicable only to white Americans who owned property. The initial draft did not put any limit on the government’s powers and did not protect individuals’ rights from government intervention. All these issues were addressed and resolved through the ten amendments of the US Bill of Rights.
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This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad and edited by Nishka Kamath, a graduate from the University of Mumbai. It discusses in detail the history and development of animal welfare laws in the United States and the federal and state laws that govern animal welfare in the country.
It has been published by Rachit Garg.
Introduction
Animal rights and animal welfare have been at the center of several debates over the centuries. From the era of Aristotle, where animals were seen just as objects that were to be used by humans for their benefit, to the modern era of the People for the Ethical Treatment of Animals (PETA), wherein animal protection and rights are given utmost priority, the voice of the voiceless is now heard by all.
The United States of America has played its part by enacting both federal and state level legislation to protect animals. Organizations like the Animal Legal Defense Fund have been advocating for the rights of animals within the country for decades and are also calling for the enactment of a Bill of Rights for animals. With this brief introduction to the animal law framework in the country, let us now try to understand the development of animal rights in the country.
History
Views of various philosophers
Over the years, many philosophers have penned their views regarding the role of animals in the modern world and the duties owed to them by human beings. One of the first to do so was Aristotle who believed that animals could not be part of human society because they lack the ability to reason. Other philosophers like Tom Reegan, Helena Silverstein, and Steven M. Wise argued that animals were created for the sole purpose of being used by human beings and that they fell below humans in all aspects. They based their argument on the law of nature and stated that the law of nature was created by God for the use of humankind only and, thus, animals could not be a part of the same. René Descartes was of the opinion that animals were devoid of rationality, soul, and feelings. Thomas Hobbes stated that human beings have a right over all animals and can use the animals for their own benefit as they deem fit. John Locke believed that human beings owed a duty to God to use animals to further God’s creation, i.e., for the benefit and development of mankind. The ideology of Aristotle was reiterated by David R. Schmahmann and Lori J. Polacheck in the 19th century, wherein they stated that the status of animals is inferior to that of human beings because animals do not possess intellectual and reasoning capacities.
The American viewpoint
The early American legal system surrounding animal laws was an extension of these views and saw animals as the property of human beings. It considered owners of domestic animals to have absolute rights over animals, just like they would have over any other property. American jurist Steven M. Wise noted that under the early American common law regime, owners of domestic animals were allowed to abuse the animals and subject them to any form of cruelty as they deemed fit, i.e., animal cruelty was legally sanctioned with the exception that such cruelty should not be aimed at the property of other individuals. In the mid-19th century, animal rights activists started raising their voices against animal cruelty. As a result, subjecting animals to unwarranted and unnecessary violence was prohibited across the country. The state of New York was the first in line to enact anti-cruelty statutes. This statute prohibited the malicious killing or maiming of work animals like horses and oxen, i.e., animals that were commercially valuable. However, it did not prohibit any form of cruelty against animals that were not commercially valuable.
For the protection of animals, the Federal Government of the United States passed its first law in 1960 and named it the Federal Laboratory Animal Welfare Act. One of the main objectives behind enacting this Act was to ban the stealing and illegitimate trading of domestic pets, mainly for the purpose of research. Another amendment was made to this Act in 1970, wherein the names of several new species were added. It also paved the way for inculcating provisions related to proper food, water, and care for all those animals that were subjected to research in laboratories. Additionally, instead of focusing on the rights of the animals subjected to harm and torture in labs, this Act had its focus on the duty of human beings towards animals; it said no human should treat any animal with cruelty. Further, in 1976, this Act was amended again by the Federal Government; here, provisions for the treatment of animals during transportation were one of the major clauses included. Furthermore, the ambit of this Act was extended to cover handlers and carriers of animals, wherein the individuals were forbidden from subjecting the animals in their possession to any sort of cruel behavior. The Act was again amended after 9 years in 1985, where several provisions relating to the protection of animals from any sort of abuse or cruelty while being experimented on in laboratories were added. This amendment also expanded the ambit of this Act and went about covering more animal species and bringing changes to the already existing penalties for subjecting animals to cruelty.
Animal advocacy movement
The traces of the animal advocacy movement can be first seen in the 18th century in England, the United Kingdom, where several organizations, including the famous Royal Society for the Prevention of Cruelty to Animals (RSPCA), raised their voices to demand legislation for the prevention of animal cruelty. Whereas, in the United States, the animal advocacy movement emanated from the works of Peter Singer in ‘Animal Liberation’ and Tom Regan in ‘The Case for Animal Rights’ in the late 19th century. In the 21st century and modern era, animals advocated are classified into two branches based on the works of Peter Singer and Tom Regan.
The supporters of both these movements have distinct goals pertaining to the rights of animals and their protection. Further, they also have different mechanisms and ways of dealing with the issues and to attain the set goals.
Let us have a look at both the movements, shall we?
Peter Singer
All the individuals who support Peter Singer advocate for the just and humane treatment of animals in all cases; this moment came to be known as the animal welfare ve.
Tom Regan
Whereas, the supporters of Tom Regan advocate for forbidding all forms of exploitation. This also includes the banning of using animals for one’s own good; this moment came to be known as the animal rights movement.
The animal welfare movement
The English philosopher Jeremy Bentham was one of the first jurists to put forth the ideologies advocated by the animal welfare movement. He opined that even though animals lack intellectual capacity and the ability to reason, they can feel pain and suffering. Any action taken against animals should be weighed against the pain that will be suffered by the animal to decide if the action is just and moral.
Peter Singer provided an extended view of this ideology. He believed that animals can experience pain and pleasure alike and that their interests should be taken into consideration before taking any action that might affect them. He further stated that animal interests should be weighed equally with human interests. However, if the balance weighs in favor of humans for any action to be taken against animals, animal interests would not be considered. He did not object to using animals for any purpose or subjecting them to cruelty by any means if the animal interests are weighed on an equal footing with human interests before such action is taken and the results are in favor of humans. He was of the view that human life has more value as compared to animal life because human existence adds value to society.
In total, the main objective of the animal welfare movement is to prohibit humans from inflicting pain and suffering on animals without considering the interests of the animals on an equal footing with their own interests.
The animal rights movement
This is the modern form of animal advocacy that developed in the late 20th century, and Tom Regan is considered the man behind initiating this movement. He believed that all animals and human beings are given life by God and, thus, both serve their own purpose in the world, a purpose that is not inferior or superior to the other. Therefore, animals cannot be used by human beings to satisfy their own demands as they deem fit. Because of God-given life, animals have a right to be respected. He called for the prohibition of all actions that would affect the interests or lives of animals and stated that, like humans, animals also have the right to life and liberty. These rights stand on an equal footing to those of humans. He criticized animal welfare advocates on the ground that animal interests should be respected even if human interests weigh more when measured on an equal footing.
He was of the firm belief that animals should be given legal rights. Thus, his followers call for a world wherein animals are not subjected to any form of abuse in order to satisfy human needs and interests. They call for the closure of zoos and parks that cage animals. They also seek a prohibition on keeping animals as domesticated pets, exposing them to scientific experiments, etc. Regan believed that even if animal experiments were necessary to find a cure for a disease so that humankind could survive, they should not be performed because animal rights should be respected at all times and should not be ignored even if human lives are at stake.
In total, the main objective of the animal rights movement is to give animals the same rights as possessed by human beings and to ensure that their freedom is not affected under any circumstances.
Timeline of key developments in animal rights advocacy in the USA
Pre-industrialization era
It was in 1641, when a legislation against animal cruelty was introduced for the very first time in America. It was enacted in the state of Massachusetts under the statute of the Body of Liberties. It laid prohibitions against any sort of cruelty towards animals who were held captive for human use. It also had provisions for providing adequate rest to cattles who were being transported from one place to another. Further, in 1828, New York passed the first animal-cruelty law. With the passing of this legislation, a ban was put on all the inhumane activities executed by humans on animals like:
Killing,
Beating,
Torturing,
Maiming horses, cattle, and sheep.
Furthermore, similar legislation on anti-cruelty towards animals was enacted in Massachusetts in 1835.
Post-industrialization era
The 20th century
Anti-cruelty laws were enacted in every state of the US in the 20th century. Every state in the United States had its own anti-cruelty legislation around 1907. Later, in 1944, the Public Health Service Act came into existence; the main objective of this Act was to provide an enhanced economic support for scientific research on animals. Further, the Animal Welfare Institute (AWI) was established in 1951.The AWI was enacted for curbing the distress caused by human activity on animals. Additionally, the AWI founded the Society for Society for Animal Protective Legislation (SAPL), which acted as the base for enacting the Humane Slaughter Act that was passed in 1958. This Act had provisions for slaughtering animals by way of humane methods and the infliction of minimal pain in doing so.
Moreover, in 1966, the backbone of all the laws in the US related to animal welfare was passed which came to be named as the Animal Welfare Act. It laid down some restrictions and conditions for the humane treatment of animals. It also inculcated a few specifications related to conducting research and experimentation on animals. An amendment was made to this Act for adding terms in relation to the treatment of animals while carrying them from one place to the other. In addition, a new provision was added to expand the scope of the Act to cover handlers and carriers of animals and forbidding them from committing any inhumane activity on animals in their possession. Besides, the Act was amended again in 1976, which included clauses forbidding animal fighting ventures. Various organizations were established between 1979-1980 that expanded so much that they have now become some of the leading organizations to combat the issue of animal cruelty and working towards the welfare of the animals; some of them are as follows:
People for the Ethical Treatment of Animals (PETA).
In 1985, the Food Security Act of 1985 was amended to include provisions regarding the humane care of animals in laboratories, i.e., providing them with sanitation, housing, ventilation, exercise facilities, etc. The year 1992 saw the enactment of the Animal Enterprise Protection Act, which called for the criminalization of all violent acts of terrorism aimed at enterprises using animals or animal-derived products in their business.
The 21st century
In 2006, the Animal Enterprise Protection Act was amended and re-introduced as the Animal Enterprise Terrorism Act, and the scope was expanded to include academic and corporate enterprises which used animals in the course of their business and classified any person who attacked such enterprises as an enterprise terrorist. The 2018 Dog and Cat Protection Act prohibited the import and export of dogs and cats for the purpose of extracting fur and also prohibited human consumption of dog and cat meat. In 2019, California banned products derived from animal fur from being produced, sold, or imported into the state. Several new bills are in line as of now, including the likes of the Conserving Ecosystems by Ceasing the Importation of Large Animal Trophies Act 2020, which prohibits importing endangered or threatened species into the country, and the Farm System Reform Act 2021, which calls for the reduction of concentrated animal feeding operations, etc.
Federal animal protection laws
Over the years, the national government of the United States has recognized the importance of animal welfare within the country and has enacted several laws to protect and promote animal rights. This began with the enactment of the Animal Welfare Act in 1966. This Act acted as the foundation of animal welfare legislation that was enacted thereafter. From providing humane care and treatment to animals to prohibiting animal crushing and cruelty, the American legislature has empowered animals with multiple rights. Let us look into these laws in detail.
Animal Welfare Act, 1966
The Animal Welfare Act of 1966 was enacted with the intention of prescribing humane standards that have to be maintained by individuals involved in the purchase, sale, and transportation of animals. It also governs the standards that have to be maintained by the research facilities that are involved in conducting research and experimentation on animals. Let us now discuss some important provisions under the Act in detail.
Important definitions
Animal
The term ‘animal’ includes dogs, cats, guinea pigs, hamsters, rabbits, and all other warmblooded creatures, whether dead or alive, that are being used for research and experimentation purposes or are being kept as pets. However, the following species of animals are not included:
All species of birds.
Rats and mice.
Horses, unless being used for research purposes.
Livestock and poultry that are being used for the purpose of improving animal nutrition, breeding, improving production efficiency and quality of food, etc.
Animal act
All acts performed by trained animals in stage shows, exhibitions, or any other form of performance.
Carrier
Any person who acts as the operator of an airplane, train, ship, or any other form of vessel that is being used to transport animals from one place to another.
Institutional Animal Care and Use Committee (IACUC)
The IACUC establishes and maintains a research facility for the purpose of analyzing the treatment, care, use, and housing of animals by all three classes of licensees and to ascertain whether the standards being applied by the licensees are in conformity with the provisions of the animal welfare laws.
Dealer
This includes any person involved in the business of delivering for transportation or transporting animals, animal parts, blood, organs, etc., for research, experimentation, or exhibition.
Exotic animals
The term ‘exotic animal’ includes all creatures that do not fall under the definition of ‘animal’. Such animals should be native to or should come from a foreign country. It includes animals like tigers, elephants, camels, kangaroos, antelope, lions, etc.
Farm animal
The term ‘farm animal’ includes all species of domesticated cattle, sheep, goats, horses, etc., that are maintained and bred on farms and are used either as food or fiber. The,y may also be used for the purpose of improving animal nutrition, breeding, production efficiency and quality of food, etc.
Hybrid cross
The term ‘hybrid cross’ includes all animals that are born out of cross-breeding. A cross-breed born out of breeding between two wild animals falls under the category of a wild animal, and if a crossbreed is born out of breeding a wild animal and a domestic animal, it falls under the category of a domestic animal.
Mobile or traveling house facility
A mobile housing facility includes any vehicle used for transporting and housing animals for any purpose.
Outdoor housing facility
An outdoor housing facility includes any building, land, or any other open area that is used to hold and house animals.
Pound
A pound can be defined as any housing facility that adopts or seizes animals for the purpose of caring for them and giving them for further adoption. It may be a profitable or non-profitable establishment.
Sheltered housing facility
A sheltered housing facility includes any housing facility that has the primary purpose of providing care and shelter to animals at all times. It includes both outdoor housing facilities and mobile housing facilities.
Research facility
It includes any school/institution or any person who uses animals for research and experimentation purposes. The following conditions need to be satisfied for an entity or person to qualify as a research facility:
They purchase or transport living or dead animals.
They received funds under a grant, loan, or a United States departmental contract.
Licensees
Types of Licenses
Class ‘A’ licensee
This includes any person who is involved in the business of breeding and raising animals on closed premises and who acquires more animals for the purpose of improving the breeding within his facility.
Class ‘B’ license
This includes any person who is involved in the business of purchasing, selling, or reselling animals. It also includes brokers, auctioneers, carriers, and any other individual who is not the owner of the animal and does not have physical possession of the animal.
Class ‘C’ licensee
This includes any person who is involved in the business of exhibiting animals to the public. These license holders are also authorized to buy and sell animals for the purpose of maintaining and enhancing their collection.
Sale or transportation without a license
This provision prohibits the sale or transportation of animals to any research facility, to an exhibition, or for being used as pets by any person except an authorized license holder under the Act.
Revocation of license
If the Secretary of Agriculture of the United States is of the opinion that any person is acting in violation of the provisions of this Act or the licenses issued thereunder, he may suspend the license of such person for a period of 21 days. This period can be extended after the license holder is given an opportunity to be heard. In the event that it is ascertained that the license holder has acted in violation of the provisions of the Act, he may revoke the license.
Humane standards
The Secretary of Agriculture of the United States is authorized to prescribe standards for the humane handling, care, and treatment of animals by carriers, dealers, research facilities, and exhibitors. This includes standards for handling, feeding, maintaining sanitary conditions, protecting them from extreme weather conditions, providing them with optimal veterinary care, etc. The object behind prescribing these standards is to provide animals with an environment that protects their physical and mental well-being.
Standard at research facilities
The operators at the research facilities are obligated to ensure that no pain or distress is caused to animals at any time during the research process. Also, they should ensure that the animals are provided with the necessary veterinary care as and when required. In addition to this, the following standards are prescribed:
Consult with a qualified veterinary doctor before administering anesthetic or tranquilizing drugs to animals.
Consult with a qualified veterinary doctor before subjecting them to euthanasia.
Provide animals with pre-surgical and post-surgical medical treatment.
They shall administer anesthetics or tranquilizing drugs to animals to ease their pain without causing a significant delay.
They shall not subject any animal to continuous experimentation without giving it time to recover unless such experimentation is necessary because of the existence of certain special circumstances.
Animal fighting
The following acts involving animal fighting are declared unlawful under the Act:
Intentionally sponsoring or exhibiting animals in animal fighting.
Attending an animal fighting venture or forcing any individual who has not attained the age of 16 to attend such a venture.
Intentionally purchasing, delivering, keeping in possession, or training animals with the intention of introducing them to animal fighting ventures.
Use of any medium for advertising or promoting animal fighting ventures.
Purchasing sharp items or objects for use in animal fighting ventures.
Investigation and inspection
The Secretary of Agriculture of the United States is authorized to conduct investigations or inspections to ascertain whether the dealers, carriers, exhibitors, research facilities, etc., are following the standards prescribed under the Act. Such inspections or investigations can be conducted at any time at the discretion of the Secretary. In the case of research facilities, the Secretary should conduct such inspections at least once a year. The Secretary is also authorized to empower inspectors to seize animals that are being treated in an inhumane manner and also to administer anesthetics or tranquilizing drugs to animals to ease their pain, if necessary.
If any person interferes with the duties being exercised by the Secretary or any of the Inspectors under this provision, he shall be subject to a fine of $5000 or may be imprisoned for at least 3 years or both. If any person uses a dangerous and deadly weapon in order to restrict the Secretary or the Inspectors from exercising duties, he shall be subject to a fine of $10,000 or may be imprisoned for at least 10 years or both.
Penalties and appeal
If any dealer, carrier, exhibitor, research facility, etc. violates any of the provisions under the Act or any rule made thereunder, he shall be subject to a fine of $10,000 for each violation. The Secretary shall also pass an order restricting such a person from continuing the violation in question. No penalty can be levied unless the person in question is given an opportunity to be heard. If the person violates the order passed by the Secretary, he shall be subject to a fine of $1,500 for each violation.
If any person is aggrieved by an order passed by the Secretary, he may file an appeal to the appropriate court of law having jurisdiction to hear the matter within 60 days of the receipt of the order.
The Twenty-Eight Hour Law
The Twenty-Eight Hour Law was initially enacted in 1873 and was thereafter repealed and reenacted in the years 1906 and 1994. This law prescribes rules for the transportation of animals and the standards to be followed by carriers while transporting animals from one place to another. The authority to enforce this law has been vested with the United States Department of Agriculture. Let us now look into the provisions of this law.
Confinement of animals
No person shall confine animals in any vehicle while transporting them for a period extending 28 hours without unloading and feeding the animals. This period may be extended beyond 28 hours on account of accidental or unavoidable causes. This period can be extended to 36 hours if the owner of the animals provides the same in writing to the carrier.
Unloading and feeding animals
Animals who are being transported should be unloaded once every 28 hours for a period of at least 5 hours during which they should be fed properly and should be allowed to rest. The cost of feeding the animals should be borne by the owner of the animals. If the animals are being transported in a vehicle that has sufficient space for the animals to rest and feed, this provision shall not be applicable.
Penalty for violating the norms
If any individual is found guilty of violating any norms about the confinement and unloading of animals intentionally, a penalty of $100-$500 will be levied upon them.
Humane Methods of Livestock Slaughter Act (HMSA), 1958
The Humane Methods of Slaughter Act (HMSA) passed in 1958 has norms on the humane slaughtering of animals in slaughterhouses by causing the minimal possible pain. This clause is extended to all livestock, except that of poultry. Now let us have a look at some of the crucial provisions of this legislation.
Humane ways for slaughtering an animal
The HMS Act has two provisions that are considered humane to slaughter animals, they are as follows:
Slaughtering livestock with a single blow, gunshot, or usage of any kind of current or chemical that causes quick and minimal pain and suffering to the animal.
Slaughtering animals with respect to the religious beliefs of s community provided that such an activity causes an immediate death of that animal.
The Endangered Species Act, 1973
The Endangered Species Act was enacted in 1973 for safeguarding the endangered species of flowers and animals, basically, both the endangered species of the flora and the fauna were protected under this Act. This Act also permits the National Congress to add any endangered species in the list and to further take necessary steps and measures to protect these species. Further, this Act also has clauses of the International Convention on Trade in Endangered Species of Wild Flora and Fauna. Let us now glance through the pivotal provisions of this legislation.
Determining endangered species
Under the aforementioned Act, the United States Secretary of Agriculture has the authority to determine which all species are qualified as an endangered species. This can be determined with to the following conditions:
Posing as a threat to the present or future destruction of the species as a whole or to its habitat.
Using that species in multiple places in matters of research and experimentation, thus, causing an over utilization of the same.
Any disease that may cause any harm or damage to the species.
Any natural or man-made factor that may pose a threat to that species as a whole or to its habitat.
Prohibited activities
Under the aforementioned Act, the following activities are forbidden:
Importing any endangered species into the United States.
Exporting any endangered species from the US into another state or nation.
Carrying or transporting any endangered species within the territory of the US or on high seas that fall under the US jurisdiction.
Busing or selling any endangered species as a part of the interstate trade.
Threatening the habitat of any endangered species intentionally.
Penalties
Under this Act, if any individual infringes any provision or rule laid down under this Act, the secretary has the authority to levy a fine of $25,000 for every violation. Also, there can be no penalty imposed on any individual unless the person is given an opportunity to be heard.
The Preventing Animal Cruelty and Torture Act, 2019
The Preventing Animal Cruelty and Torture Act, 2019 (PACT) was enacted with the intention of prohibiting certain specific forms of animal cruelty within the territory of the United States. While several state-level laws existed that prohibited animal cruelty, this is the only Federal Act that specifically deals with this subject. Let us now look into the important provisions of this legislation.
Offenses
Crushing
Crushing can be defined as torturing and crushing small animals to death by any means whatsoever.
Creating animal crush videos
If any person crushes an animal and makes a video of the same, knowing that the video will be distributed or used in interstate or foreign commerce, it shall be considered an offense.
Distributing animal crush videos
If any person knowingly distributes, advertises, sells, or purchases animal crush videos knowing that they will be used in interstate or foreign commerce, it shall be an offense.
Extra-territorial jurisdiction
This Act has extra-territorial jurisdiction and applies to any person outside the United States who intends to distribute or transport animal crushing videos into the country.
Penalties
Any person who violates the provisions of this act may be subject to a fine or imprisonment of up to seven years or both.
The Lacey Act, 1900
The Lacey Act, 1900 specifically prohibits individuals from importing, exporting, transporting, buying, and selling wild plants and animals that have been taken into possession illegally. It authorizes the Secretary to seize such animals or plants along with the vessel that was used for transporting them.
Prohibited Acts
An act by which a wild animal or a fish is taken into possession, transported or sold in violation of any national or international law is prohibited.
An act by which any plant is acquired by means of theft of plants from a park, forest reserve, officially protected area, or from any place without authorization for the purpose of transporting or selling it in interstate or foreign commerce is prohibited.
Penalties
Any person who violates the provisions of this act may be subject to a fine of $10000 for every offense.
Other important legislation
Preventing Future Pandemics Act, 2021
The Preventing Future Pandemics Act was enacted with the objective of combating pandemics that are caused by wild animals or their consumption by human beings. This legislation explicitly prohibits the import, export, and sale of wild animals for human consumption within the United States. It also includes provisions for appointing officers in countries where wild animals are consumed at large so as to effectively combat the risks associated with such consumption. It also focuses on international agreements and cooperation as a means to prohibit the sale and consumption of wild animals across the world.
The Big Cat Public Safety Bill, 2021
This Bill explicitly prohibits the private ownership of big cats and keeping big cats in basements or private houses as they pose risks to the owners and the people living around them. The term ‘big cats’ includes animals like lions, tigers, cheetahs, leopards, etc.
The Captive Primate Safety Bill, 2021
This Bill explicitly prohibits any person from acquiring, selling, or transporting animals like apes, monkeys, lemurs, etc., as part of the exotic pet trade within the country.
The Dog and Cat Meat Trade Prohibition Act, 2017
This Act explicitly prohibits the sale, purchase, and transportation of dog or cat meat for the purpose of human consumption within the country.
Humane Cosmetics Bill, 2021
This Bill explicitly prohibits cosmetic testing on animals and the sale or import of cosmetic-tested animals from other countries within the territorial jurisdiction of the United States.
State-level animal protection laws
Apart from the federal legislation in the country that governs animal protection and welfare, every state has enacted its own set of laws governing animal welfare. These laws generally cover companion animals, i.e., those animals that are most often kept as pets. This includes the likes of dogs, cats, a few species of birds, horses, etc. The state-level laws do not have provisions regarding the research and experimentation of animals, and the federal law is followed throughout the country for the same.
Shelter requirements for animals
States like Oklahoma, Kansas, Nevada, Arizona, Minnesota, Wyoming, and Tennessee have strict animal shelter laws and it is mandatory that the appropriate authorities maintain proper shelter houses for stray animals. States like Texas, California, Montana, North Dakota, South Carolina, and Utah along with 6 other states have more specific laws and they provide that animals should not only be provided with proper shelter but their health condition in the shelter should also be monitored and they should be provided with proper healthcare facilities. States like Columbia, Illinois, and New York, along with 19 other states, go a step further and provide for the installation of bedding and the maintenance of sanitary conditions in the shelter for the animals.
Reporting animal cruelty
Social service workers and veterinary doctors are obligated by law to report instances of animal cruelty to the appropriate authorities. They also mandate cross-reporting of such instances between animal and human welfare organizations. States like Florida, Ohio, and Guam have extensive legislation regarding the same. In Hawaii, veterinary doctors are mandated to report suspected instances of animal cruelty as well. However, a majority of the states, including the likes of Arizona, New Mexico, Kansas, Texas, Missouri, etc., have not enacted any legislation in this regard.
Possession of animals by convicts
Some states have enacted laws that prohibit people who have been convicted of animal cruelty from owning animals after their release. States like Washington D.C., Guam, Hawaii, Kansa, and Colorado, along with 16 other states, have enacted such laws. States like Texas, Wisconsin, Missouri, Illinois, etc. have enacted permissive laws, i.e., laws that allow ex-convicts to own animals after the expiry of a certain period of time.
Sexual assault on animals
Apart from the states of New Mexico and West Virginia, all other states have prohibited and criminalized sexual assault on animals by humans. These two states try such offenses as part of their animal cruelty laws.
Other laws
If an animal is kept in a vehicle under extreme weather conditions, the person doing so is held criminally liable. This is referred to as the ‘hot car laws’. These laws allow people to rescue such animals if necessary, and such rescuers are free from any criminal or civil liability for the destruction of property caused by the rescue. These laws are prominent in New York, California, Arizona, Alaska, etc. Some states, like California and Maryland, have also prohibited the sale of animals at pet stores unless such animals have been adopted from shelter homes. States like Illinois and New York have enacted legislation that prohibits the use of elephants for the purpose of entertainment. Some states also have laws regulating intensive confinement of animals, i.e., laws that prohibit the confinement of animals wherein such animals are not free to move within the confined area.
Animal Protection Index Report
The Animal Protection Index was established with the intent of ranking countries across the world on the basis of the animal welfare legislation enacted by them. The rankings are based on the capacity of the countries to achieve the following goals:
Recognition of animal sentience and prohibition of animal cruelty.
Presence of animal welfare legislation.
Establishment of government bodies to enforce the provisions of animal welfare legislation.
The extent to which the country is in line with international obligations towards animal protection and welfare.
Now let us look into the rank of the United States as per the Animal Protection Index Report of 2020.
Recognition of animal sentience and prohibition of animal cruelty
Animal sentience
Animal sentience has not been recognized explicitly at the federal level under any legislation. Under the Animal Welfare Act, provisions regarding ensuring minimal pain infliction during the experimentation of animals have been inserted. The Act also provides for the promotion of the psychological well-being of animals. However, the definition of ‘animal’ under the Act has a restricted scope and includes only a few animals, thereby making these provisions ineffective for the animals not falling under the ambit of the Act. Although state-level legislation provides for the protection and promotion of the physical and psychological well-being of animals, the definition of animal has a restrictive scope. Due to these factors, it has been graded a ‘D’ under this goal.
Animal cruelty
The Animal Welfare Act includes provisions regarding the standards of humane care and treatment that have to be provided to animals at all times. It does not include any provisions that explicitly provide for a prohibition on animal cruelty but has provisions that focus on preventing the suffering of animals under certain specific circumstances. However, as discussed above, the scope of the Act is restricted. The Humane Slaughter Act and Horse Protection Act also include provisions regarding the humane treatment of animals. The PACT Act and the Lacey Act include specific provisions prohibiting animal cruelty. All states in the United States have enacted laws for animal protection that prohibit animal cruelty. For example, in Alabama, killing or subjecting to cruelty any animal owned by another person is prohibited. The states of Michigan and Florida have enacted legislation that prohibits inhumane and cruel treatment of animals. Due to these factors, it has been graded a ‘C’ under this goal.
Presence of animal welfare legislation
Protecting animals used in farming
The Humane Slaughter Act provides for the slaughtering of farm animals in a humane manner. The Federal Meat Inspection Act reiterates the same and mandates slaughterhouses to follow the guidelines provided under the Humane Slaughter Act for slaughtering farm animals. The Twenty-Eight Hour Law governs the transportation of farm animals. State-level anti-cruelty legislation also advocates the same. However, there is no legislation for the protection of farm animals during rearing. Moreover, the Animal Welfare Act excludes farm animals from its ambit. However, certain states, like California and Florida, have laws that protect animals during breeding. Due to these factors, it has been graded an ‘E’ under this goal.
Protecting animals in captivity
The Animal Welfare Act provides for the humane treatment of animals kept in zoos and exhibitions. It also covers aquariums, circuses, and animals in the possession of dealers and intermediate handlers. The Endangered Species Act also prohibits keeping endangered animals in captivity. State legislations prohibit keeping big cats and exotic animals as pets. Due to these factors, it has been graded a ‘D’ under this goal.
Protecting companion animals
The Animal Welfare Act regulates provisions regarding the sale and resale of dogs; the prohibition of dog fighting ventures, experimentation on dogs; etc. It also has provisions governing online sales of pet animals. The Dog and Cat Protection Act prohibits the import and export of dogs and cats for the purpose of extracting fur. Due to these factors, it has been graded an ‘F’ under this goal.
Protecting animals used for draught and recreation
The provisions of the Animal Welfare Act and the Animal Fighting Spectator Prohibition Act 2013 include provisions regarding animals being used for entertainment purposes and prohibit animal-fighting ventures of all forms. Also, state-level legislation prohibits animal fighting ventures and has provisions governing the use of animals in entertainment. Due to these factors, it has been graded an ‘F’ under this goal.
Protecting animals used in scientific research
The Animal Welfare Act and the Health Research Extension Act of 1985 regulate experimentation on animals and provide for the application of humane standards during such experiments. The latter act covers mice and rats, which were excluded under the ambit of the former. The Humane Cosmetics Bill was another step taken in this direction. Due to these factors, it has been graded a ‘C’ under this goal.
Establishment of supportive government bodies
The United States Department of Agriculture is the enforcing authority under the Animal Welfare Act and all other federal legislations regarding animal welfare and protection. It has an animal care unit that deals with the treatment of animals, a veterinary services unit that governs the life and issues relating to livestock, and a wildlife services unit that governs issues caused by wildlife animals that threaten humans. The Animal and Plant Health Inspection Service has established a center for animal welfare. It also introduced a 2010-2015 strategic plan to protect and promote animal welfare, which was extended till 2019. Due to these factors, it has been graded a ‘D’ under this goal.
Support for international animal welfare standards
The World Organisation for Animal Health (OIE) has provided standards for the transport, slaughter, and treatment of animals for research and experimentation purposes, animal health, cross-reporting of animal issues, etc. The United States is a member of the OIE and implements the welfare regulations prescribed by it. Similarly, the US has also extended its support to the Intergovernmental Conference on Animal Welfare that called for the enactment of a Universal Declaration on Animal Welfare. Due to these factors, it has been graded a ‘D’ under this goal.
Conclusion
As of today, the Animal Welfare Act of 1966 acts as the backbone of animal protection laws in the country. The states do not have laws regarding research and experimentation on animals due to the effective nature of the federal law on this subject. However, the states have come up with multiple statutes to cover the lacunas under the federal regime by enacting hot car laws, animal shelter laws, prohibiting the use of animals in entertainment, etc. Even though there are multiple legislations in place at both the federal and state levels, the primary objective remains the same, i.e., the protection of animals. The federal government is also set to bring in several new legislations like the Conserving Ecosystems by Ceasing the Importation of Large Animal Trophies Act to prohibit trophy hunting of animals, the Horse Transportation Safety Act to ensure that horses are safely transported, the Pet Safety and Protection Act, etc. Over time, one could say that the country will be able to successfully implement an exhaustive framework for the protection of animals.
Frequently Asked Questions (FAQ’s)
Does the American Constitution advocate for animal rights?
No, the American Constitution does not include provisions that provide rights to animals. No state constitution has included any provisions for animal welfare as well.
Which was the first act that provided for animal rights in the USA?
The first act governing animal protection in the country was the Federal Laboratory Animal Welfare Act. One of the primary objects behind the enactment of this law was to restrict and prohibit the stealing and illegal trading of domesticated pets for research purposes.
Which are the three national animal welfare organizations in the United States?
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This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discussed the concept of the invasion of animals under tort law with respect to the United States of America.
It has been published by Rachit Garg.
Introduction
The term ‘invasion’ is always perceived as an aggressive entry by enemies into a land that originally did not belong to them. Coerced acquisition of land or an area always has a reason underlying it. When it comes to wild animals, therefore, invasion is ideally understood to be a form of securing their livelihood or habitat solely because they have suffered in the place where they were previously located. Invasion in the language of tort can be understood as ‘trespass’. The application of tort comes into play in relation to domestic animals. This is because they generally have an owner looking after their movements and activities. The reason we are discussing the invasion of animals separately under the law of torts dates back to the dictum delivered by Lord Simonds in Read v. J. Lyons & Co. Ltd.(1947), where he observed that “the law of torts has grown up historically in separate compartments and…. beasts have traveled in a compartment of their own.” This article dedicates itself to making its readers understand the concept of the invasion of animals under the law of torts in the backdrop of the United States of America.
General liability in tort when it comes to animals
When we talk about torts, general principles such as negligence, nuisance, trespass, and damage come into play. Similarly, when discussing torts in terms of animals, such principles will remain functional, with the only variable being a shift in liability from the source of the harm (animals) to that of the controller (owner). Both torts and scienter are intended to address a situation where animals that are known to be dangerous cause harm to an individual. Cattle trespass as a remedy, on the other hand, has been designed for compensating victims for damages that have been caused to the property or the land or to any person by domesticated livestock that has escaped from their owner’s control. A person who has been injured by an animal is not limited to recovering damages only in scienter (explanation in coming paragraphs) or cattle trespass. Other causes of action, such as damages, injunctions, etc., may also be available.
Negligence: It is obvious to state that an owner of an animal who is responsible for taking care of it may become liable under established principles of tort law. In the case of Gomberg v. Smith (1963), it was held that if a person is bringing a dog onto the highway, he will be liable under the general principles of negligence if reasonable care is not exercised by him in regard to it.
Nuisance: In the case ofO’Gorman v. O’Gorman (1903), it was opined that the owner of animals would be liable for nuisance if the animals unreasonably interfere with the enjoyment of the property of the owner’s neighbor. When it comes to adjoining property as well, unreasonable interference with the same by the animals will also hold its owner liable, as was the scenario in William Aldred’s Case (1616).
Trespass: When it comes to trespass, the owner will again be liable if he contributes to the activities of his animals thereby prejudicing the rights of others. For example, if an owner commands his pet dog to attack the person walking on the adjacent road or the owner knowing it to cause damage to his neighbor, drives his animals onto the neighbor’s property, the same will amount to trespass by the owner [Cronin v. Connor (1913)].
Occupier’s liability: In the case of Kavanagh v. Stokes (1943), it was held that an occupier of a premise will be held liable if the occupier’s animal prevents the lawful entry of any individual into the occupier’s premises. The principle that was laid down in the case ofRylands v. Fletcher (1868) draws attention to our discussed context, as it stated that animals collected on the property, exhibiting non-natural use of the same if it causes damage by means of an escape, the owner will be liable for all such injuries that resulted from the escape.
The above-mentioned cases are all representations of circumstances where the liability for the injuries caused by a person’s animal is collectively placed under the general principles of tort. In all these cases, the source of the harm caused, being an animal, is irrelevant, thus resting the burden of proving the act to not be a tort on the owners of such animals. Whether it is controlling a dog on the highway in a negligent manner, a stench constituting a nuisance, or causing noise by means of barking dogs, such acts will not be determined on the basis of the fact that the source is an animal. Instead, what is important to consider in all such acts is the conduct of the defendant, who is the owner of such animals. It is noteworthy to mention that the defendant in these cases is also devoid of the defense that the plaintiff’s claims are onerous.
All about cattle trespass
As has been explained previously, trespassing signifies the unlawful entry of a person or animal into the property of another, thereby causing prejudice to the enjoyment of such land by its owner. Cattle trespass signifies the entrance of cattle owned by a person to another’s property for the purpose of straying, resulting in damages to such land. Considered to be an ancient common law tort, cattle trespass results in the keeper of livestock being strictly liable for any resultant damage caused by the livestock while straying in the land of another.
What comprises the term ‘cattle’
While the internet says that ‘cattle’ means domesticated animals raised for their byproducts such as meat, milk, or hides or for draft purposes, it generally refers to cows, buffalo, and bison. Chapter 16.04 of the Revised Code of Washington (RCW) that is talking about “Trespass of Animals-General’ states that, “any person who has had suffered from damages caused by any horses, mules, donkeys, cattle, goats, sheep, swine, or any such animals, by means of they trespassing upon any land which is otherwise enclosed by the lawful fence as provided in Chapter 16.60 RCW or causes trespass while running at large in disobedience of Chapter 16.24 RCW, can keep such animals in custody until the original owner mandatorily pays such prescribed damages, or until sufficient security be given in regards to the same.”
Provision RCW 16.04.020 is necessary to be mentioned here for it balances avoidance of prejudice for both the owner and the aggrieved party. Whenever any animals are restrained in accordance with RCW 16.04.010, the person who is involved in such prohibition is required mandatorily to notify the owner (the person in whose possession the animal was during the commission of trespass) in writing, within a period of twenty-four hours. The writing should also consist of the probable amount of damages that the owner has incurred due to the act of trespass. This provision comes with a proviso that states that the applicability of the provision is restricted to the fact that the aggrieved person has knowledge about the owner of such animals.
Further, if the owner of the animals is unknown to the aggrieved party (RCW 16.04.025), then in such case the latter shall notify the number, description, and location of the animals, to the county sheriff or the nearest state brand inspector, within twenty-four hours. Following this, it is the responsibility of the sheriff or inspector to ascertain the ownership of the animal. If they locate that the animal has been demarcated with a brand or a tattoo that is instead registered with the director of agriculture, then the latter is responsible for notifying the owner of the animal as per RCW 16.04.020.
Damages incurred by the owner of the cattle when the latter inflicts harm
The aspect of damages and liabilities owing to cattle trespass is simplified under RCW as it provides that whenever any animals trespass, as previously discussed under RCW 16.04.010, the owner having possession of the such animal shall be held liable for all such damages the owner may sustain as a consequence of such a trespass (RCW 16.04.015).
Under RCW 16.04.025, if the county sheriff or the brand inspector reaches the conclusion that no apparent damage has been caused to the property of the retainer of the animals, then such animals have to be removed as per Chapter 16.24 RCW. It is to be noted that such removal will not attract a civil suit filed by the owner on the grounds that his rights in relation to the property have been prejudiced and, therefore, he has room for recovering damages associated with it.
Scope of action for failure to pay damages
RCW 16.04.030 provides that if the owner of the animals who have been charged with the liability of paying damages fails to do so or refuses to do so, within ten days from the date of serving notice to him, the aggrieved party can initiate a civil suit in the court of law having jurisdiction against the such owner.
If the plaintiff (aggrieved party) is unaware of the defendant (owner of the animals), a John Doe injunction (a type of pre-infringement injunction, issued to a person whose identity is still unknown) can be initiated against the defendant. The proceedings in such cases will be the same as in a civil proceeding (except as modified in RCW 16.04.010 through 16.04.070). District judges will have exclusive jurisdiction for all actions and proceedings under RCW 16.04.010 through 16.04.070, if and when the claimed damages do not exceed one hundred dollars (RCW 16.04.040).
It is also to be noted that if the suit has been initiated in a superior court, the defendant is supposed to appear before the court upon being served with a summons within a period of five days from the date of the summons.
The possible defenses that the defendant has in cattle trespass cases
The defenses that the owner of the animals (defendant) can exercise when his cattle is guilty of trespassing in someone else’s land for straying purposes leaving damages behind, namely:
When costs may be charged to the plaintiff (RCW 16.04.060): The burden of proving the number of damages sustained by the plaintiff because of the defendant’s animals rests on the plaintiff himself. If the trial court is of the opinion that the defendant’s possession has not incurred any harm and if the defendant can show that a tender was made and paid into court belonging to an amount equal to the damage and costs, he cannot be held liable any further.
Trespass via fence damaged by wildlife (RCW 16.04.100): If the defendant can prove that the damage has been caused by wildlife to a lawful fence which was also in a stock restricted area and the owner did not have a reasonable opportunity as per a prudent man to repair the fence, neither he nor the State will be liable for paying the damages incurred.
Voluntary assumption of risk: Voluntary assumption of risk can also be termed to be caused by the default of the plaintiff. Based on the Latin maxim, “volenti non fit injuria”, voluntary assumption of risk restricts the plaintiff from claiming damages for the harm that was known to him as could have occurred. Although categorized as a defense, the application of the same is limited in the context of cattle trespass.
Inevitable accident: The defense of an inevitable accident can be adopted by the defendant if he can show that he had taken all reasonable care for preventing trespassing of his cattle into the stranger’s land. This defense was in play in the case of Sutcliffe v. Holmes (1947) where it was held that although this defense functions in the same line as negligence (whether the defendant had taken reasonable care to prevent the harm to a reasonably foreseeable aggrieved part), the onus to prove lack of negligence rests on the defendant himself.
All you need to know about the scienter action
The scienter action is a doctrine under the law of torts that states that the person taking care of dangerous animals (keepers), is strictly liable for any injuries or harm inflicted by such animals. While the word ‘scienter’ signifies ‘knowledge’, it is the plaintiff (the aggrieved party) who is to prove that not only the impugned animal was dangerous, but also that the same knowledge was already possessed by the defendant (owner/keeper) himself. The applicability of this doctrine is based on two categories of animals, namely:
Animals ferae naturae: Those animals which are dangerous by their very nature, for eg., tigers, wild elephants, lions, and jackals. In this case, the owner or the keeper of such animals is presumed to be aware that the animals are dangerous. In this case, keepers are said to be strictly liable for the harm caused by the animals.
Animals mansuetae naturae: These animals are by nature considered harmless, for eg., cats and dogs. Although these animals generally do not appear dangerous, it will be wrong to state that they can never cause any harm. In this case, the keeper will be strictly liable if he had knowledge about the dangerous nature of the animal prior to it harming the plaintiff.
A demonstration of the level of danger possessed by animals as discussed under animals mansuetae naturae must be in close proximity to the damage caused in the issue for scienter to apply. It was in Canada, where the rule was laid down by Conant, D.C.J., in Morsillo v. Migliano (1985), where he declared that the plaintiff was required to prove “that the alleged animal had previously committed, or attempted to commit such an act that showcased a similar level of viciousness that was presently complained of”.
As has been held in the case of Drake v. Dean (1993), as every other American state, California has successfully been able to maintain the common law cause of action on the basis of ‘scienter’ or knowledge of the dangerousness of domestic animals.
Let’s take the example of a dog in this regard. It was noticed that a dog who had chased a goat, showcasing a vociferous behavior, had not showcased similar behavior when it had bitten a person [as was seen in the case of Osborne v. Chocqueel (1896)]. Again in the case of Sgro v. Verbeek (1980), it was seen that the dog, which used to rush towards strangers, barking at them whenever any of them tried to enter the premises it was in, did not display similar behavior while it had bitten a child who was trying to take care of it.
Damages under the doctrine of scienter action
In the case of scienter, like cattle trespass, liability is imposed on the defendant (owner/keeper of the animals), who will therefore be held liable for any harm caused by the animals under his control. For avoiding hurdles in the road of determining appropriate damages that the defendant will be liable for, courts in cases of scienter action appear to have been indecisive between two tests, namely, directness and foreseeability. Directness makes room for the defendant to be liable for all damages directly related to the incident involving damages caused to the plaintiff. When it comes to foreseeability, the defendant will only be liable for those damages that can be reasonably foreseeable to have resulted from the act of the animal.
In the case of Behrens v. Bertram Mills Circus Ltd.(1957), it was observed that there is a need for drawing a distinction between damages caused by animals ferae naturae and those caused by mansuetae naturae. This is because while the former keepers have to mandatorily pay all such damages caused by animals whenever they are out of control, the owners of the latter are only liable to pay damages that result from the dangerous propensities of the animals.
Defenses available to the animal keeper under the doctrine of scienter action
The animal keeper, or defendant, has defenses that have been established by various courts of law in several notable judgments, as have been provided hereunder:
The harm caused to the plaintiff was by a caged animal (Can also be referred to as default of the plaintiff or contributory negligence):
One of the primary defenses in the application of scienter action is that the harm suffered by the plaintiff was brought upon him by himself, with no involvement of the defendant’s animal in the same. This enables the defendant to show that the harm caused to the plaintiff was not the consequence of carelessness or negligence on the part of the defendant. In the case of Maynes v. Galicz (1975), the scienter action was not applied because the harm caused to the plaintiff’s child was caused by a caged wolf. The child was bitten by the wolf in his hand because the child had gone too close to the cage of the wolf. It is interesting to note that an extreme form of plaintiff’s default can also be termed as ex turpi causa non oritur actio (out of a base illegal or immoral consideration, an action does not arise).
Animal that caused injury was under the control of the defendant:
The Court of Appeal in the case of McQuaker v. Goddard(1940) had observed that the burden of proof that the animal who caused the injury had escaped the control of the defendant keeper lay on the plaintiff. The defendant, by stating that the alleged animal was under its control when the injury was caused, can show that reasonable care in respect of the animal was taken by its keeper.
The statutory liability for dogs
Several states in the United States have begun to impose strict liability for dog attacks, which ipso facto makes the dog’s owner legally liable to a victim who was bitten by the dog. Dog bite statutes in the United States that impose strict liability date back to the 1700’s. Before talking about the dog bite statute in detail, it is necessary to understand what it refers to. Like any other statute with its own purpose, dog bite statutes provide remedies for a dog bite or any kind of harm caused by a dog, which may or may not be in the form of a bite or harm caused by a domestic animal. Dog bite statutes owe their roots to state statutes, city ordinances, case law, country ordinances, and authoritative texts such as the Restatement of Torts. This is the sole reason why the term ‘dog bite statute’ must be inclusive of state, city, and county laws. It is interesting to note that dog bite statutes primarily differ in terms of their scope and jurisdiction. While it can apply to both bite and non-bite injuries, the statute can include in its ambit, non-owners who have either custody or control over the dog and/or injuries that are suffered to the property by animals whose owners are third parties.
As per the case of Priebe v. Nelson (2006), the two key elements of a scienter claim in relation to statutory liability to dogs are prior wild behavior and knowledge concerning the same on the defendant’s part. It was further opined that cause of action on holding the defendant to be strictly liable under common law can be maintained if only the owner of a domestic animal that is involved in biting and injuring others has the knowledge about such behavior of the animal. If the defendant, although aware of the dog’s behavior decides to keep the plaintiff in abeyance, then it can be said that the former purposefully led the plaintiff to suffer the risk and thus will be strictly liable for the same.
According to a Triple-I analysis of dog bite laws compiled by the American Property Casualty Insurers Association as of March 2021, about 29 states have created liability for dog owners for any harmful act by the same. Further, in about 17 states, including the District of Columbia, although liability does not automatically arise, acts are categorized as misdemeanors or, in extreme cases, felonies, along with fines. Arkansas, Kansas, Mississippi, and North Dakota still don’t have dog bite statutes.
Dog bite statutes have no uniformity, for they vary from one state to the other in both statutory language and application. The imposition of absolute liability by means of dog bite statutes has been recognized by Minnesota courts. Scenarios in Pennsylvania and Colorado state that dog bite statutes are only applicable in cases involving grave injuries. Strict liability for financial losses (medical bills (New York covers only this) and loss of income) only in cases of dog bites has been recognized in Colorado and Oregon. The scope for the same with regards to suffering, pain, and non-pecuniary damages is absent. While in Maine and Tennessee, the statute is applicable for bites that occur outside the owner’s property, the application of the statute remains limited to bites happening on the keeper’s property in case of Alabama.
Nature of liability for dog owners in the United States of America
The legal scenario in the United States of America in deciding when to hold dog owners liable in cases where they have no intention involved in the harm caused by their dogs remains ambiguous. Liability, therefore, ranges from absolute (in cases where the owner’s fault can be shown) to strict (the owner is held liable for all the injuries that resulted because of his dog’s action, as they were foreseeable by the owner). It is ideal to note the 1993 Oklahoma case, in which the court of law affirmed the applicability of strict liability owing to the negligence of the keeper of the dog, for he left it with a commercial kennel, resulting in the aggrieved party being bitten by it.
The states that impose strict liability on dog owners, irrespective of whether they had knowledge of their dogs’ behavior, are Alabama, Arizona, California, Colorado, Connecticut, Delaware, D.C., Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Washington, West Virginia, and Wisconsin.
When it comes to the nature of liability for dog owners in the United States of America, generally, three kinds of legislation impose liability, namely:
A dog-bite statute: This statute is applicable when dog owners are automatically held liable for any kind of injury that has resulted because of their dogs without provocation.
The one-bite rule: Application of the same takes place when the dog owner was aware of the injury that his dog can cause to any individual. The burden of proof as to the knowledge of the dog owner rests on the aggrieved party (plaintiff).
Negligence laws: The application of negligence laws is sole because of lack of reasonable care taken by the dog keeper towards his dog resulting in the damage caused to the aggrieved party.
To conclude, in order to understand whether legal liability will be attached to a particular action by dogs, the following steps need to be attained:
Was the action brought against the dog, a consequence of dangerous activity threatening the general?
Had the alleged dog showcased a similar kind of behavior previously as well?
Did the defendant (dog owner/keeper) have knowledge about the propensity of his animal?
Did the dog’s dangerous conduct cause harm to the plaintiff concerned?
Damages awarded in case of dog bites/attacks in the United States of America
It is ideal to note that in the case of DeRobertis v. Randazzo (1983), where the plaintiff’s child was attacked on the head by a chained-up dog belonging to the defendant, resulting in the child having nightmares regarding the same, a sum of $40,000 was awarded to the plaintiff by the jury. The same was upheld by the Appellate Division as well. Further, when the matter went up before the state Supreme Court, the defendant also had to pledge his house as security to the plaintiff with regards to the judgment delivered. What can be understood from this is that damages in cases of dog attacks can cost the keeper heavily.
Defenses for the dog owner in cases of statutory liability
Claims that generally arise in tort cases make room for being denied by a court of law on the grounds that the conduct of the aggrieved party is by itself negligent. If negligence or carelessness on the part of the injured party or the damage caused was initiated by the aggrieved individual himself can be proved, the burden of liability can be removed from the defendant. Although defenses for torts differ from one state to the other, generally the common terms within this ambit are contributory negligence, comparative negligence, assumption of risk, and wilful provocation.
It is important to talk about a Montana case that illustrates both the issues of provocation and contributory negligence. In this case, the plaintiff was attacked by the defendant’s dog because of the former’s carelessness. The plaintiff, while talking, had leaned over the defendant’s fence, because of which the latter’s dog jumped towards the fence and bit the plaintiff. While Montana had a strict liability statute when it came to dog bite cases, the defense of contributory negligence and provocation resorted to by the defendant was rejected. This was because, under strict liability statute, the defense of contributory negligence does not have much of a hold. But, the Court had also stated that if the plaintiff had knowingly, unreasonably subjected himself to the risk possessed by wild animals or an abnormally dangerous domestic animal, a defense of contributory negligence cannot be denied.
The defense of the assumption of risk is also said to be available as a defense in some states in dog bite cases. If the aggrieved party is viewed as being involved in working with animals, then any kind of risk that is associated with the same (such as dog bites) will be invoking the defense of the assumption of risk, without any second thought to the same.
Conclusion
As we come to the conclusion of this article, it is ideal to state that tort law revolving around the invasion of animals is generally similar to the one surrounding humans. The liability arising from any kind of harm caused or resultant damages vests completely on the owner of the animal. This relationship between the animal and its owner is, to some extent, similar to that of employer-employee with the only difference being that in the latter case both can be held responsible for the negligent act, while in the former it is limited to the owner only.
References
Maynes v. Galicz (1975), 62 D.L.R. (3d) 385 (B.C.S.C.).
Sutcliffe v. Holmes, [1947] 1 K.B. 147 (C.A.).
Osborne v. Chocqueel, [1896] 2 Q.B. 109.
Sgro v. Verbeek (1980), 111 D.L.R. (3d) 479 (Ont. H.C.).
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This article is written by Nishka Kamath, a graduate of Nalanda Law College, University of Mumbai. It gives an overview of the distinction between sexual assault and rape under US law. Further, an attempt is made to shed light on the most important definitions of terms related to sexual assault and rape. Moreover, a state-wise description of the difference between sexual assault and rape in several US states is provided at the end of this article.
It has been published by Rachit Garg.
Introduction
In general, an individual commits rape if he or she uses physical force or threats to force a consensual sexual intercourse between two people. In contradiction, an individual is guilty of committing sexual assault if any sexual contact is made with another human being. An example of sexual assault would be touching intimate parts of a person without their consent, thus not amounting to rape. The definitions of these terms are discussed in brief in the coming paras.
Before we begin, it should be noted that the definition of rape and sexual assault is different from state to state in the United States. Further, some states classify rape and sexual assault as the same crime. Furthermore, a state in the US might consider sexual assault to be sexual battery or sexual abuse. Moreover, in states where there are no discrete definitions for rape and sexual assault, these offenses will be considered sexual acts performed without the consent of the victim.
This article is an attempt to shed light on the differences between rape and sexual assault.
Sexual assault vs. rape under US law
Brief overview
Sexual assault
Sexual assault usually refers to any crime where an individual is subjected to sexual contact or any unwanted or offensive touching. Sexual assault crimes are broad and range from groping, touching, to assault and battery and go on to heinous crimes like that of rape. All the states in the US have criminalized this offense, but as stated above, the definition varies from state to state. In general, it is the act of touching another person in an unwanted manner. It is a serious offense, and the penalties for such an offense are severe, both at the state and federal levels.
Further, sexual assault relates to any sexual activity that is without consent and prohibited by state or federal laws, including those activities where the victim cannot give free consent.
Rape
Rape can be defined as sexual intercourse forced on another person without his/her consent and against their will. This activity is punishable throughout the United States, but the legal terms (as mentioned above- some call it rape, sexual assault, sexual battery, etc.) vary from state to state. Regardless of the term used by the state, any activity involving sexual penetration or sodomy without consent is rape.
Please note: Generally, heavy petting or other unwanted sexual touching not involving penetration will not amount to rape or criminal sexual penetration. Even though it is a crime, it is said to be less serious than one involving penetration.
Legal definitions
Before looking at the definitions of sexual assault, rape, sexual abuse, consent, and force, which are necessary to understand before we delve deeper into the details, a point must be made that the definitions differ from state to state. Moreover, some states consider rape and sexual assault under one category or as the same crime. Most of the definitions have been discussed under 10 U.S. Code § 920 – Art. 120. Furthermore, a state may sometimes consider referring to sexual assault as sexual battery or sexual abuse. Moreover, consent will mean voluntarily agreeing to do some activity proposed by another individual. Let us now have a look at these terms.
Sexual abuse
Sexual abuse is defined under Title 18, Part 1, Code § 2242 of the US Code. It says any individual whether living on territorial (land) or maritime (water) jurisdiction of the United States or in a federal prison or any prison, for that matter, or a place where individual(s) are held in custody via a contract or agreement with the head of any federal department or agency, knowingly-
Causes another individual to engage in any sort of sexual activity by jeopardizing or putting the other person in fear (other than by jeopardizing or putting the other person in fear that any individual will be subjected to death, serious bodily injury, or kidnapping);
Gets involved in any sexual activity with another individual if that person is:
Not capable of assessing the nature of the activity; or
Physically not capable of refusing to engage in, or communicating the refusal to perform the sexual activity; or
Participates in any sexual activity with another individual without consent, to do so through coercion; or attempts to do so.
It further says the perpetrator shall be fined under this title and imprisoned for years or life.
Moreover, there are several federal statutes enlisted under 18 U.S. Code Chapter 109A– sexual abuse, which includes the following sexual offenses:
Aggravated sexual abuse under 18 U.S.C. § 2241,
Sexual abuse under 18 U.S.C. § 2242,
Sexual abuse of a minor under 18 U.S.C. § 2243,
Abusive sexual contact under 18 U.S.C. § 2244,
Offenses resulting in death under 18 U.S.C. § 2245, inter alia.
Sexual assault
In some states in the United States, there is a distinction between rape and sexual assault. Sexual assault is usually defined as:
Deliberately making a physical contact with the intimate body parts of another individual, and
Performing such an activity without the consent of that individual.
Intimate parts under sexual assault
Intimate parts generally means the
primary genital area,
anus,
groin,
inner thighs, or
buttocks of a male or female and the breasts of a female.
A man fondling a woman’s breasts without her consent is one example of sexual assault.
Please note: Depending on the jurisdiction, sexual assault may be referred to as:
sexual battery,
sexual abuse, or
unwanted sexual contact.
Further, the definition of sexual assault is discussed in this Code under subsection (a), any individual subject to this chapter who-
Performs a sexual activity on another individual by-
intimidating or placing that other individual in fear;
makes a deceitful representation that the sexual activity served a professional purpose; or
instigating a belief by any trickery, pretense, or concealment that the person is another person;
Commits any sexual activity on another individual-
without obtaining the consent of the other individual; or
when the individual knows or must reasonably know that the other individual is asleep, unconscious, or otherwise not aware that the sexual activity is taking place; or
Commits a sexual activity on another person when the other person is not capable of giving consent to the sexual activity due to-
impairment caused due to any drug, intoxicant, or other similar substance, and that condition is known or must be known by the person; or
a mental disease or defect, or physical disability, and that condition is known or must be known by the person;
is guilty of sexual assault and shall be penalized at the direction of the court martial.
Rape
In the United States, there are states that use the terms “rape” and “sexual assault” interchangeably. For instance, Arizona and Colorado consider rape and sexual assault to be the same crime (discussed in detail below). Many states, however, distinguish between the two offenses; in such cases, rape refers to the crime of forcibly having sexual intercourse with another person without obtaining the consent of the victim.
Further, under 10 U.S. Code § 920 – Art. 120, subsection (a), rape means any individual being subjected to any sexual activity upon another individual person by-
using unlawful force against the other person;
using force causing or likely to cause demise or grievous bodily harm to any individual;
intimidates or places any other individual in fear that other individual will be subjected to losing their life, grievous bodily harm or kidnapping;
first rendering that other person unconscious; or
administering to the other individual by coercion or threat of force, or without the knowledge or assent of that person, a drug, intoxicant, or any substance like so and thereby substantially impairing the ability of that other person to appraise or control conduct.
Such a person shall be guilty of committing rape, and the punishment would be at the direction of the court martial.
Consent
Both rape and sexual assault involve a person engaging in sexual activity without the consent of the victim. Even though the legal definition of the term “consent” may be different from state to state, a general overview of it can be voluntarily agreed to by other individuals:
proposal,
plan, or
suggestion.
A person cannot be said to have consented to any sexual activity if he/she has been subjected to fear or threat to obtain consent.
Under 10 U.S. Code § 920 – Art. 120, subsection (7)(a), “consent” is defined as an agreement given freely to any activity by a competent person. Any sort of coercion, threat, or fear imposed on the individual, or putting another person in fear, done to obtain consent, will not amount to consent. Under this definition, even if the individuals are dating, were dating previously, or have any other social or sexual relationship, they must obtain consent before performing any sexual activity. Further, the way an individual dresses will not in any way amount to giving consent.
Also, consent cannot be obtained from a sleeping, unconscious, or incompetent person. While determining whether consent was given freely or not, the circumstances surrounding the person are to be taken into consideration.
Incapable of consenting
Under 10 U.S. Code § 920 – Art. 120, subsection 8, the term “incapable of consenting” is discussed. It states that any individual who is not able to understand the nature of the activity or is not physically capable of participating or communicating their unwillingness to engage in such a sexual activity will be considered to be incapable of giving consent.
Force
Force does not necessarily have to be by means of physical pressure. An individual committing it may sometimes use emotional coercion, psychological force, or manipulation to compel a victim to commit non-consensual sexual activities. The perpetrators of such crimes may also use threats to force a victim to obey; at times, they might also threaten to harm the family of the victim or any of their beloved ones.
Further, under 10 U.S. Code § 920 – Art. 120, subsection 4, the term “force” is discussed. It means-
Using a weapon;
Using physical strength or violence sufficient enough to overcome, restrain, or injure a person; or
Causing bodily harm that is sufficient enough to coerce or compel submission by the victim.
Related federal statutes
Rape and sexual assault
As discussed above, both rape and sexual assault are defined under 10 U.S. Code 920, Art. 120. The state-wise definitions and differences are discussed in detail below.
Key elements of sexual assault and rape
Sexual assault
What constitutes sexual assault
There are several key elements that are considered while investigating a sexual assault case, like:
The nature of the physical contact,
The body part and the area that was touched,
The factual circumstance that caused the sexual assault,
If there were gestures or words with the sexual assault,
Other connected situations involved in the sexual assault.
Types of sexual assault
The following are some of the most common types of sexual assault, inter alia:
Blitz sexual assault
Blitz sexual assault refers to the perpetrator quickly and brutally assaulting the victim without prior contact. Such an activity usually occurs at night in public places.
Contact sexual assault
This type of sexual assault occurs when a perpetrator contacts the victim and tries to gain their confidence either by flirting or sweet talks, luring them to their car, or trying to force the victim into a situation where the sexual assault will occur.
Homeinvasion sexual assault
This type of sexual assault takes place when a stranger breaks into the house of the victim to commit such an act.
Types of sexual assault charges
Sexual assault is not confined to a particular sort of activity. When the perpetrators are taken in police custody, upon finding them guilty of the offence, they shall be punished with either of the three categorised crimes of sexual assault, namely:
Level one
Level one addresses sexual assault. It specifies that the assault committed on the victim was sexual in nature, but no physical injuries were inflicted even though the victim’s sexual integrity was compromised. Level one usually consists of the following types of activities:
touching inappropriately,
unwanted kissing,
oral, vaginal, or anal sex.
Under level one, the matter of consent is quite critical.
Level two
Under level two, any sort of sexual assault that leads to bodily harm or entails any sort of weapon or threat to a third party is addressed.
Level three
Level three covers aggravated sexual assault.
Please note: These levels are classified by the severity of the physical injuries inflicted on the victim who lodged a complaint. In a country like Canada, there is no statute of limitations on sexual assault. A perpetrator can be charged with committing a sexual offense at any time, irrespective of the time of occurrence of the crime.
Rape
What constitutes rape
In American society, traditionally, rape has been defined as the “forced penetration of a woman by a male assailant.”
Types of rapes
The following are some of the most common types of rapes, inter alia:
Acquaintance rape
This type of rape is an umbrella term for rapes committed against known individuals. In simple words, the perpetrator knows the victim well. This is one of the most common forms of rape.
Date rape
This is a kind of acquaintance rape where the victim and the perpetrator are on a date and the perpetrator rapes the victim.
Stranger rape
This type of rape is committed by a stranger or an unknown person.
Statutory rape
This type of rape refers to an unlawful sexual encounter with a minor. The Californian law prohibits an adult from having sex with a minor or a minor from having sex with another minor, irrespective of the consent obtained.
Types of rape charges
Rape charges may differ from state to state. In Washington, there are three degrees of penalizing rape, namely:
First degree rape
First degree rape involves coercion and may occur with the use or threatened use of a deadly weapon, kidnapping, causing serious bodily harm to the victim, or even burglary. It is a Class A felony, and the punishment for the same can go up to life imprisonment.
Second degree rape
Second degree rape refers to those cases that involve forcible compulsion but do not go to the extent of a first degree offense. It may also take place in situations when a victim is not mentally or physically capable of giving consent or when the defendant is in a position of authority, for instance in a healthcare or elder care facility. It is also a Class A felony.
Third degree rape
It is an offense that does not amount to first or second degree rape but still involves a “clearly-expressed” lack of consent, coercion, or harm to the victim or their property. This is a Class C felony, and attracts an imprisonment of up to five years.
Difference between sexual assault and rape
Tabular representation of the difference between sexual assault and rape
Grounds of difference
Sexual assault
Rape
Definition
A brief definition of “sexual assault” under 10 U.S. Code 920, Art. 120, is any sexual activity conducted by intimidating or deceiving, without consent or in the absence of consent, or on an individual who has any mental illness, is intoxicated, drugged, or the like, and cannot freely consent.
Rape is defined in subsection (a) of 10 U.S. Code 920 (Art. 120) as an unlawful activity conducted by coercion or force, or by retaining the individual, rendering them unconscious, or by drugging, intoxicating, or administering a substance that impairs their ability to consent.
Punishment
The punishment depends on the discretion of the court martial.
The punishment for the offense of rape will depend on the discretion of the court martial.
Types
There are several types of sexual assaults; some of them are:Blitz sexual assault,Contact sexual assault,Home invasion sexual assault.
There are several types of rapes; some of them are:Acquaintnace rape,Date rape,Stranger rape, statutory rape.
Types of charges
The perpetrators of sexual assault are punished under the following three categories of crime:Level one (no physical injuries),Level two (caused body harm),Level three (aggravated sexual assault).
The perpetrators of rape will be punished under the following three categories of crime (as per the state of Washington, which may vary from state to state):First degree rape,Second degree rape, and Third degree rape.
Gravity of offense
In states where there is a distinction between sexual assault and rape, sexual assault is less serious as compared to rape.
In states where there is a distinction between sexual assault and rape, rape is more serious than sexual assault.
Severity of punishment
In states where there is a distinction between sexual assault and rape, the punishment for sexual assault is less severe as compared to rape.
In states where there is a distinction between sexual assault and rape, the punishment for rape is more severe as compared to sexual assault.
Defences for the offence of sexual assault and/or rape
The defendants charged with the offense of rape or sexual assault can avail the followingdefenses–
Innocence
In a rape or sexual assault case, the primary defense is claiming innocence. The accused or defendant may contend that he/she was not at the location when the crime took place, commonly known as presenting an alibi, thus, proving they were not with the victim at the time of the crime.
Further, the defendant or accused may claim that there has been a mistake of identity on the victim’s side. Moreover, the burden of proof lies with the prosecution and not the defendant.
Consent
A defendant can claim that the sexual activity committed was consensual. In some states of the US, defendants are allowed to claim a mistake of consent as long as he/she did not act recklessly in the ability of the victim to consent. So, if the defendant has not acted in a manner that was wild or irresponsible, an attempt to claim an honest belief that the victim gave consent can be made.
Insanity or mental capacity
Another possible defense for such an activity can be an insanity plea or the mental incapacity of the defendant to control his behavior, to form any criminal intent or to understand the gravity of the activity conducted or its unlawfulness for that matter. So, the mentally challenged defendant, who has no ability to fully understand what he/she was doing can claim that they had a mental illness or defect at the time of committing the sexual activity.
Sex offender registration
The perpetrator found guilty of any sex offense has to register on a national sex offender registry. This registry is state-specific. Every state in the United States has a sexual offender program and a registration program.
This website has information relating to the name of the defendant, his/her address, case, and report. Additionally, this information is made accessible to the local public. Most sex offenders undergo treatment in jail or prison as a condition of their probation.
Who are the perpetrators of such abominable crimes
It is a typical misconception that rapes and sexual assaults are committed by “masked strangers hiding in the bushes” while a person is walking alone at night. However, such occurrences do occur, and statistics have made it evident that strangers are less likely to commit such offenses in comparison to assaults by friends, families, or acquaintances.
As mentioned above, it is a common belief that offenders in most rape cases are strangers or unknown to the victim. However, the truth is that in the majority of the cases, the perpetrators are known to the victim; they could either be relatives, friends, or work colleagues, too.
Rape can occur within marriages too, as sex is all about consent. If a partner coerced the other partner to have sex, then it constitutes as rape as well.
Statistics on sexual assault and rape in the United States
The U.S. Department of Justice published a report titled “Criminal Victimization, 2005,” and the following are the statistics on rape and sexual assault:
Nearly 73% of the sexual assault perpetrators were committed by a non-stranger.
Around 28% were by an intimate partner.
Around 38% percent were friends or acquaintances.
About 7% of sexual activities were committed by a relative of the victim.
Only 2% were strangers, i.e., there was no relationship between the victim and the perpetrator.
Further, around 50% of rape and sexual assaults took place within one mile of the house of the victim, with four in ten visiting the house of the victim.
Seeking help in matters related to sexual assault and rape
When and where can a victim of sexual assault or rape seek aid
If any individual has experienced sexual violence and wants to seek help or would like more information, it is advised they call 1-888-772-7227 in Pennsylvania, or contact the Rape, Abuse & Incest National Network (RAINN) at 1-800-656-4673 from any state in the U.S.
What if someone accuses you of charges of sexual assault
It is not a fact unknown that not every individual charged with the offense of sexual assault or rape is really guilty. False allegations may be levied against the accused in order to satisfy the alleged victim’s ulterior motives. In some cases, a victim may mistake one person for another.
In such cases, it is always advisable to seek legal guidance from an attorney. The attorney will help in freeing the accused from such charges, thus acting as a deciding factor between a conviction and an acquittal.
Sexual assault vs. rape : a state wise description
As discussed above, there is a difference between sexual assault and rape in several states in the United States. Here is a brief description of some states:
New York
In New York, sexual assault is the umbrella term used to define sex crimes that involve nonconsensual touching or sexual conduct. Sexual assault refers to any sexual act committed without obtaining the prior consent of the victim.
Whereas, rape is referred to as a non-consensual sexual intercourse and can involve physical force or coercion. It can also involve duress, which can involve the use of drugs, threats of violence, or emotional manipulation. The punishment for rape is as follows:
First degree rape (Class B felony- up to 25 years of imprisonment).
Second degree rape (Class D felony- up to 7 years maximum imprisonment).
Third degree rape (Class E felony- up to 5 years of maximum imprisonment).
Texas
In Texas, sexual assault is a term commonly used to refer to rape. Rape is referred to as an assaultive offense of a sexual nature as per the law in Texas.
In this state, the offense of sexual assault or rape is a second-degree felony, and the convicts can be sentenced to two to twenty years of imprisonment and also a fine of $10,000.
Hawaii
In Hawaii, sexual assault refers to any crime that involves any unwanted and offensive sexual touching. Moreover, there are four degrees of sexual assault that apply to the most serious sex crimes, which are as follows:
First degree sexual assault (Class A felony).
Second degree sexual assault (Class B felony).
Third degree sexual assault (Class C felony).
Fourth degree sexual assault (Misdeamenour).
Further, rape or non-consensual intercourse committed by coercion, force, or duress is penalized under Hawaiian laws.
Virginia
In Virginia, sexual assault and rape charges are considered serious crimes and felonies. Sexual assault can be any activity performed forcibly or against someone’s will. Depending on the facts of the case and the severity of the sexual assault crime, the punishment ranges from a year to 25 years in prison and a fine of up to $2500, or both.
Rape, on the other hand, is classified as sexual assault but has a more profound meaning that involves sexual intercourse involving penetration into the vagina, anus, or mouth. The punishment for this can go up to life imprisonment. Other penalties may apply, too, depending on the severity of the rape.
Prevention of sexual assault and rape : way forward
In order to eradicate or prevent sexual assault, the following steps can be taken:
Elucidating women regarding their sexual rights.
Provide social skills training.
Shifting men’s and women’s attitudes about traditional sex roles, adversarial sexual beliefs, and rape stereotypes.
Enlighten children and teenagers early on personal boundaries and respect for others.
Conclusion
In the end, one must always remember that there can be different forms of sexual assault or rape, but one thing remains constant: it is never the fault of the victim. Further, as per a recent report published by Equality Now, the rape and sexual assault laws across America are insufficient and inconsiderate. They must be enforced systemically to prevent the risk of sexual violence against women and/or adolescent girls. The report also stated that most rape laws in America fall short of the international human rights standard and that rape or sexual assault laws are not successfully implemented. For instance, in Paraguay, there is no prison sentence for raping an adolescent girl between the ages of 14 and 16; however, the punishment for raping a child or an adult ranges from four to fifteen years.
Moreover, the following barriers in American law were stated in the report:
In some states, the definition of rape or sexual assault is quite limited and some even require proof to be produced for such a heinous criminal act.
The concept of consent-based definitions of rape is only is six out of 43 jurisdictions, thus, making the laws insufficient.
There are some jurisdictions that have a prescribed time limit within which one has to file cases related to equal violence.
In order to curb these barriers, the American Government has to address the issue of sexual violence, and to do so, they can implement the following measures:
Improve protection in the law.
Improvise on the accessibility to justice under the law.
Improve implementation, accountability and accessibility to justice.
Challenge negative stereotypes and improve the understanding of the local public in matters of sexual violence.
Word of advice
The information in this article provides the reader with a general overview of the difference between sexual assault and rape. It is not published with the intent of providing legal advice, and it is advisable that the readers not rely on legal advice on any of the websites online and seek legal advice from an attorney.
Frequently Asked Questions (FAQs)
What is the highest level of sexual assault?
Level three is the highest degree of sexual assault. It covers aggravated sexual assault. The punishment for the same depends on the state and the discretion of the court martial.
What is the highest degree of rape?
First degree rape is the most severe type of offense. It is a Class A felony and attracts life imprisonment. However, the punishment for first degree rape depends totally on the discretion of the judge.
What is SAAM in the United States?
In the United States, April is sexual assault awareness month, commonly known as SAAM.
SAAM’s mission is to elucidate people about sexual violence in society and to enlighten communities on how to prevent such offenses.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. The article explains the meaning of “natural rights” and provides examples of how they were incorporated into the US Constitution and the natural rights given to citizens therein.
It has been published by Rachit Garg.
Introduction
Before beginning, let’s play a game of questionnaires to better understand the purpose of this article. Take a few seconds and answer these questions.
Are you aware of what you can and cannot do in the US? If you are a citizen, do you know the rights that have been given to you by its Constitution? Can you hold property in the US? Are there any restrictions? Can you invade someone’s privacy? Are you infringing on any of the restrictions on your rights?
If you know the answers to all these questions, you are aware of all your rights and are exercising them in a correct manner. But if you are clueless, you need to know more about the natural rights that are given to a US citizen by the US Constitution.
Some of the rights guaranteed by the Bill of Rights in the US are man-made, while others are termed “natural rights.” The US Constitution guarantees numerous fundamental rights to its citizens, which are enumerated in the Bill of Rights, and the first ten amendments to the US Constitution list the fundamental rights that the Constitution grants to the citizens. These rights are enforceable by court order and cannot be modified or suspended except by an amendment to the Constitution. In this article, we’ll look at how the concept of natural rights relates to the US Constitution, as well as what natural rights are guaranteed to US citizens. Let us begin our journey!
Meaning of natural rights
The rights available to a person since their birth are known as “natural rights.” These are different from legal rights, as they are not dependent on any tradition, custom, law, or government. These are uniformly available to everyone, irrespective of caste, gender, race, creed, color, and age. This idea of natural rights emerged and originated with the origin of natural law. According to the theories of natural law, natural rights are granted by nature and are not subject to any authority or government.
The concept of human rights is a recent development, but natural rights have been in existence since the origin of the human race. For example, the right to life is one such right that cannot be snatched by anyone in this world. Every human being, after his/her birth, has the right to live. This right is available from the time a person is born. It can be said that natural rights are certain morals and principles that are universal and apply uniformly to all cultures and castes. These rights are inalienable by nature, which means that they cannot be taken by any authority, whether sovereign or government.
Types of natural rights
Natural rights can be classified into two categories:
Inalienable rights
Alienable rights
Inalienable rights
The rights that are not subject to any condition and cannot be taken by anyone are known as inalienable rights. These rights are available to any person from the moment he/she is born and cannot be alienated. The right to life, right to liberty, and the pursuit of happiness, according to John Locke, the first proponent of natural rights, are inalienable rights.
Right to life
The right to life is the first and most important right available to an individual since birth. After their birth, no person, authority, group, or government has the power to take away any person’s life. Every person has the right to live. This is why this right is one of the most fundamental rights. There can be various aspects of this right, like the right to live with dignity and the right to food, shelter, etc., which depend on the circumstances in different countries, but this right as a separate one is available to every person on this earth and is recognized by every country.
Right to liberty
Liberty, in its literal sense, means freedom or living a free life. Nobody can be detained within four walls without any significant reason. Every individual has the freedom to live their life on their own terms. However, they must not violate the rights and liberty of any other person. This right also includes various other kinds of freedom, like freedom of speech and expression, etc.
Pursuit of happiness
The pursuit of happiness is mentioned in the United States Declaration of Independence. It means that a person can enjoy life and exercise the rights granted to him/her without restraining others from exercising their rights. No one is allowed to do anything against the law. It is the ability of a person to know natural law and their unalienable right to live a harmonious life by applying the principles of natural law. According to John Locke, the pursuit of happiness is also considered the foundation of liberty because it frees a person from any kind of attachment and leads to satisfaction in life.
Alienable rights
The rights that can be transferred or alienated from one person to another are called alienable rights. Most property rights fall under the category of alienable rights, since property can be transferred from one person to another.
Right to property
Every person has the right to own property as long as they are alive. After the person’s death, the property has to be transferred either to his/her own child or to any other member of the family. Locke argued that every person has a right to exercise control over material things they own, like lands, houses, etc. This theory of property rights was proposed by John Locke in the Second Treatise of Government in 1690. According to him, the property is something that can be sold, given away, or even confiscated by the government under certain conditions and is not just mere goods and land.
Relationship between natural rights, natural law, and the US Constitution
Natural law and natural rights are closely connected to each other. Natural law is largely based on the idea that humans possess certain values such as morals and ethics that govern their behaviour and dealings with other fellow mates in society and help them live cheerful lives. These ethics help a person to decide whether his acts are morally right or wrong and generate moral conscience. On the other hand, natural rights are the rights that are enjoyed by a person from his birth. The moral conscience of a person helps him in exercising those rights peacefully without violating the rights of another person. For example, a person has the right to life, which has been available to him/her since his/her birth. No other person has the right to take his/her life, and they must ensure that their acts do not violate this particular right. They can be done only through their inherent morals and ethics. This further indicates that natural rights and natural law are mutually exclusive and cannot exist without each other.
The ideas of natural law and natural rights in America were neither indefinite nor expanded on until the 18th century. Americans believed that one could protect liberty or freedom only by ensuring that their acts or words did not harm the liberty of any other person. In order to protect himself, he must not hurt other people. Before adopting the Constitution, the people in the US decided to submit some of their liberties to the government in order to retain their natural rights. However, these rights are not absolute in nature, can be restricted and subject to the limits prescribed by the legislature in the Constitution. For example, every person has the freedom of speech and expression but it does not mean that they have the right to defame or abuse any person as such activities are illegal and punishable by law.
Rights under the US Constitution : inalienable or unalienable rights
The rights given in the US Constitution are termed “unalienable rights” in the Declaration of Independence rather than “inalienable rights.” The original draft of the Declaration written by Jeffersoncontained the word “inalienable,” but the copy written by John Adams had the word “unalienable.” Now, the question that might arise in the minds of most people is ‘whether the two words are synonymous or is there any difference between the two?’
After looking at the meaning of the two words, it can be said that both of them give a similar meaning i.e. something that cannot be transferred or taken away from a person. Thus, both of them have the same meaning and that is why the rights that can neither be transferred nor taken away from a person are known as “unalienable rights”.
History of natural rights in the US
The making of Constitution in the US has a glorious history. The country had a peculiar set-up and comprised 13 colonies, forming a federation. The US colonies i.e., Connecticut, Delaware, Georgia, Maryland, Massachusets etc, were joined together by the feeling of nationalism and love for civil liberty. They adhered to the free government and for this purpose, elected colonial assemblies which represented each colony. Apart from this the Philadelphia Convention and the Declaration of Independence played a significant role in creation of the US Constitution and it’s principles. This further led to the establishment of natural rights in the country.
The philosophy of natural rights and their presence in society was brought in light by the founding fathers of the US Constitution. Some of them are, Richard Bland, Patrick Henry, Thomas Jefferson James Madison, and many more. These philosophers further came together to adopt the Leedstown Resolutions, which asserted the fundamental rights of people. Later in 1774, the citizens of Fairfax County adopted the Fairfax County Resolve in a meeting which affirmed that natural rights are given by nature and the natural law. This was the first time that the people in America asserted that laws must be enacted to govern their affairs. As a result of which, various committees were formed to defend these rights for the citizens.
Another milestone in the history of natural rights is the Declaration of Rights which was adopted in 1776 during the Virginia Convention. The declaration stated that every person has certain inherent rights from the day he/she is born. These inherent rights are called natural rights. Further, the Virginia Statute on Religious Freedom recognized freedom to practice or profess any religion as part of natural rights enjoyed by citizens. This declaration is also considered as one the most important and significant steps towards the development of natural rights in the US and their incorporation in its Constitution.
Natural rights and the American Revolution
The idea of natural rights played an important and significant role in the American Revolution. The theory of natural rights rendered the movement on a large scale and is one of the reasons for the success of the revolution. During the revolution, people used these rights as a tool to demand their freedom and entitlements. For example, the strive and zeal of people to secure the right to property and other related rights led to the Glorious Revolution in 1688. This further resulted in the convention of Declaration of rights whose major parts were incorporated in the Constitution as the Bill of Rights.
The aim of the government was shifted to secure rights of citizens. The ultimate purpose of the government was then converted to secure rights for the citizens. The phrase by Jefferson used in the Declaration of Independence that “all men are equal” helped to unite people and instil a sense of collectivism among them. The notion of addressing the citizens of the US as “people of America,” also help in creating a feeling of brotherhood and togetherness among the masses. This further strengthened the fight against inequalities during the colonial rule of Britain.
Natural rights were used in the pre-revolutionary era to interpret the English Constitution and oppose it by instilling the feeling of independence in the masses. During colonial rule, Americans were nether represented in the parliament nor had any decision-making power. This necessitated their urge to have independence in order to enjoy freedom and conduct affairs of their country by themselves. A well-structured theoretical system was built by the citizens to counter English law and fight against their unrighteousness. Natural rights gad a big role of play. The founding fathers understood the importance of these rights and then as their weapons against the colonial rule. They employed the idea of freedom, liberty and natural rights in their speeches and writings in order to increase the pace of legitimation of independence in the country. It can be said that natural rights helped in shaping the political thoughts of people in America which led to their independence and later they became a part of their Constitution.
Natural rights under different documents in the US
Declaration of Independence
The Declaration of Independence is one of the most powerful documents in the world and continues to inspire people to raise their voices for their freedom and equality. Abraham Lincoln correctly noted it as “a rebuke and a stumbling block to tyranny and oppression.” The declaration was proclaimed on July 4, 1976. With this declaration, the history of independence started in the United States. The colonies became independent from the authority of the crown. Each state wanted to protect its own individuality, and the common purpose of securing liberties united them all.
The concept of natural rights played an important role in the US, as it was mentioned in the Declaration of Independence. The Declaration was primarily made by Thomas Jefferson, but the Continental Congress made some significant changes and asserted phrases like “all men are treated equally” and “endowed by the creator, some unalienable rights like the right of life, liberty, and the pursuit of happiness” and that “these are self-evident” in the Declaration. The word “unalienable” used to describe the rights in the declaration reveals the existence of natural rights in the country. The Declaration further criticized King George III and the Parliament for denying such rights to their citizens.
These words in the declaration grabbed the attention of delegates after the adoption of the US Constitution, and it was argued that those unalienable rights must be mentioned expressly in the constitution. The Declaration is not a legally binding document like the Constitution, but it formed the basis for change and ideas in the country.
Philadelphia Convention
The Constitution of the United States of America was adopted in this Convention, which was held in 1787 and came into force on March 4, 1789. The adoption of the US Constitution changed the character of states and established a federal government giving maximum autonomy to the states. Originally, it was a federation of 13 states, but currently, they are 51 in number.
Under Article 1 of the Constitution, the supremacy of the people in the country and their representation by their representatives are recognized. In the Convention, power was given to the Congress to look over important matters and work for the development of the country.
The words “blessing of liberty” in the Preamble of the Constitution indicate that the concept of natural rights existed in the country, but there was no Article in the Constitution that expressly mentioned those rights.
The Bill of Rights
The Declaration of Independence became the basis and foundation stone of the Bill of Rights, which contains a list of rights guaranteed to the citizens of the United States. The US Constitution, through its Bill of Rights, guarantees the fundamental rights of person, property, and liberty to its citizens. As mentioned above, these were not explicitly mentioned in the original draft, but people enjoyed certain unalienable rights before the creation of the constitution.
With the subsequent amendments, individual liberty has been effectively protected and mentioned in the Bill of Rights. These rights cannot be modified or suspended by any authority or government except by way of an amendment to the Constitution. Rights like freedom of speech, worship, religion, no unreasonable detention, etc. are now considered the hallmarks of a fair and just society. These amendments are legally binding as they form a part of the Constitution. It must be noted that not all the rights given to citizens in the US are natural, some of them are even man-made. All the rights are enumerated in the first ten amendments (the First Amendment to the Tenth Amendment) in the Constitution.
Rights guaranteed to US citizens under the Bill of Rights
The US Constitution guarantees its citizens certain rights that are listed and explained below:
The First Amendment guarantees rights like the right to profess religion, freedom of speech and expression, freedom of the press and the right to peacefully gather or assemble. It further puts an obligation on the state not to make any law that restricts or creates hurdles for people to enjoy and exercise these rights.
The Second Amendment imposes a duty on the military to provide security to the state and the citizens have a right to keep arms in order to protect themselves from any attack or harm.
No soldier is allowed to enter the premises or house of any person forcefully without their permission or consent. In order to do so, they must adhere to the procedure prescribed by law. This is mentioned in the Third Amendment.
The Fourth Amendment protects citizens against unreasonable search and seizure. If a building or house of a person has to be searched, it can be done if a warrant has been issued in this regard.
The Fifth Amendment elaborates on the rights given to an accused. These are:
In serious criminal offences, charges will be initiated by the grand jury. However, no such thing will be done in military cases.
Protects accused against self-incrimination.
No person will be vexed twice for the same offense, i.e., it prohibits double jeopardy.
The courts must follow due process while awarding any punishment.
Nobody will be deprived of their property without proper and fair compensation.
According to the Sixth Amendment, the accused will be subject to a fair trial in a speedy or expeditious manner. The trial will be done in front of an impartial jury. They will be duly informed about the charges against them and provided services of legal aid. They are also allowed to bring witnesses in their favor.
In civil cases, People in the US have a right to a jury trial This is mentioned under the the Seventh Amendment.
The Eighth Amendment protects citizens from excessive bail and fines, unjust and unreasonable punishments.
Further, the Ninth Amendment provides people in the US also have rights that are not mentioned in the Constitution apart from those that are expressly mentioned.
According to the Tenth Amendment, the federal government is empowered to exercise only those powers mentioned in the Constitution. The other powers will be exercised either by the states or the people of the country. Natural rights under the First Amendment to the US Constitution.
Natural rights under the First Amendment to the US Constitution
The First Amendment to the US Constitution The First Amendment to the US Constitution guarantees its citizens various rights like the right to religion, freedom of speech and expression, freedom of the press, and the right to assemble peacefully along with certain liberties, like the liberty of speaking, expressing, writing and so on. However, there has been long debate over the issue of granting of liberties and freedom to the citizens before their incorporation into the Constitution. Some scholars and philosophers often regarded freedom of speaking, writing, and publishing as part of the right to liberty, while other scholars regarded freedom of the press as a part of freedom of speech and publication.
There was a need to consider limitations on such freedoms. This resulted in two queries: first, the scope of pre-political liberty, and second, the extent to which the people surrendered their liberty to the state. With respect to the first query, it was argued that liberty in the pre-political era was subject to natural law and meant that a person could exercise liberty to the extent that he was not hurting or stopping any other person from exercising his or her liberty. Though people gave up some of their liberties, those could be regulated in pursuit of the public good.
The constitution framed by the Philadelphia Convention did not have rights that were to be given to the citizens. There was a quick need to define the rights and freedoms of people rather than creating any new rights. Some people in this situation argued that people in the United States were exercising their natural rights before drafting the constitution as well, and thus, there is no need for a declaration of rights, while others stated that there must be a declaration that gives the meaning and extent of each right given to the citizens. This further led to the First Amendment, which guaranteed freedom of speech and expression, freedom of peaceful assembly, freedom of the press, and freedom of religion. In short, it gave liberties to people. However, people have to exercise their liberty in a way that does not ruin or harm the liberties of others.
Fundamental individual rights
The First Amendment of the US Constitution gives rights related to conscience, thoughts, and expression to its citizens with almost no exception. The rights are given to each individual separately and are hence considered fundamental rights. The right to profess a religion of their own choice means that people in the US are free to worship any god or deity and follow any religion. However, James Madison argued that this might determine eternal destinies.
Similarly, the right to freedom of speech, expression, and peaceful assembly gives people an open forum to discuss and express their thoughts and opinions about governmental activities and policies for the development of the country. These rights tend to develop people’s personalities by enhancing their participation as citizens.
Preferred Position Doctrine
The courts in the US have been given the power to enforce the rights mentioned in the Constitution. The rights given under the first amendment are considered natural and unalienable rights. This gave rise to the “Preferred Position Doctrine,” which means that these rights must be preferred over other rights because they are absolute in nature and have almost no restrictions.
According to this doctrine, constitutional rights must be arranged in a hierarchy in which the rights at the top are preferred over the other rights. The first order of the hierarchy of constitutional rights was seen in the case of Palko v. Connecticut (1937). In this case, it was held that out of the rights given in the constitution, only a few are given in ordered liberty and are called fundamental rights. Such rights are mentioned in the first amendment. The court, while dealing with one of these rights, must strictly scrutinize the restrictions and try to ignore their constitutionality. The idea that some of the rights are given a preferred position over others can be through the creation of fundamental rights, scrutinizing the restrictions over such rights, selective application of the Bill of Rights etc.
The courts in the USA have kept this doctrine alive in a number of instances. The Warren Court used this doctrine to expand civil rights and liberties. While the Burger Court did not expand the rights and liberties but accepted the preferred position doctrine. On the contrary, the Rehnquist Court kept economic issues above such rights and gave a preferred position only to property rights.
Conclusion
The political system in the United States is very old. The institutions evolved through the wisdom of the founding fathers of the Constitution and the nation. With the numerous colonies, it is currently a federation of 51 colonies consisting of people who speak different languages, has different cultures and traditions, etc. In such a situation, there was a need to grant them specific rights. The Bill of Rights is the legally binding document that contains those rights. These were incorporated into the US Constitution by way of amendments.
But with technological advancement, there has been an increase in the demand for certain rights like the right to privacy, security against cyber crimes, the right to the internet, the rights of the LGBTQ community, etc. It is necessary to mention these rights, or else they will not be recognized and people might tend to violate them. The most common right that is violated frequently is the right to privacy. People can easily breach and invade others’ privacy and then claim that it has not been guaranteed by the Constitution.
The natural rights granted by the US Constitution also contain liberties like freedom of speech and expression, peaceful assembly, freedom of the press, etc., but these liberties must have certain restrictions for the public good, and those should have been mentioned in the constitution. However, no such restriction has been mentioned, which makes them absolute and allows people in America to arbitrarily exercise these freedoms. Moreover, these natural rights, which were once core principles, are now subordinated in the name of development. Thus, revision and modification of such rights must be done regularly to avoid chaotic situations.
Frequently Asked Questions (FAQs)
Are all the rights provided under the US Constitution natural rights?
Not all the rights guaranteed in the US Constitution are natural rights. Some of them are also man-made rights. For example, the right to profess religion, the right to life, liberty, and freedoms, etc. are all natural rights, while the right against self-incrimination, double jeopardy, bearing arms, etc. are man-made rights.
Distinguish between natural rights and civil rights.
Natural rights are the basic rights that are available to an individual from the time of their birth. These are not enforced by law or custom. For example, the right to life, the right to liberty, and the right to own property is the main natural rights. While civil rights are those rights that are provided by society and enforced by law, For example, the right to vote, and the right to a fair trial, etc. are some examples of civil rights. Moreover, natural rights are universal and inalienable, while civil rights may differ from place to place.
What are the views of John Locke on natural rights?
John Locke was one of the first proponents of natural rights. He argued that people have certain natural rights, like the right to life, liberty, and property, and these cannot be violated by any person or by a sovereign itself. His theory of natural rights greatly influenced the Declaration of Independence in the United States, which helped in the establishment of natural rights in the country.
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