Student Suspended for Casting A Curse
Paul-Finkelman at UTULSA.EDU
Wed Nov 1 23:59:15 PST 2000
Given Rick's articulation of the theory of impossibility my question is this; assuming that the student did put a hex on the teacher, won't that still come under legal impossibility, in that it is legally impossibly to harm someone by merely "wishing" they were harmed; "I wish you were dead," or even, "I pray you will be hit by a car and die," strikes me as coming under legally impossible, because we cannot criminalize mere thoughts or beliefs, but only acts. And only acts that have the potential to cause harm.
My other question is this: it is 17 years or so since I took crim law, but I remember being taught (perhaps incorrectly) that you can't be tried for for attempted murder for "shooting" a person who is already dead with a real gun; and you can't be tried for it for shooting someone with a water pistol. Now, unless we are back in the 1690s, is anyone willing to argue that a hex or curse will have any effect on anyone. I suppose there is the argument that if you believe I am a witch, and I say I am a witch and will stick pins in you, that you may get an ulcer or heart attack or loose sleep worrying etc. But even in Tulsa I don't see that argument having much weight.
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK 74104
E-mail: paul-finkelman at utulsa.edu
Rick Garnett wrote:
> Dear all,
> On the student-hex thread: Generally speaking, "factual" impossibility does not preclude criminal liability for attempt (on the theory that, had the facts in the world been as the defendant supposed them to be, and had he achieved his desired end, his conduct would have been criminal) but "legal" impossibility does (had the world been as the defendant supposed, he still would not have committed a crime, i.e., what he tried to do is not a crime). But there are all kinds of fun hypos in the criminal-law books that test this basic statement.
> The "inherent" impossibility cases are especially interesting because, if the above-mentioned general rules were followed, those whose attempts to commit crimes are inherently doomed (e.g., an attempt to sink a battleship with a squirt gun) are really only "factually" impossible. They should (the theory goes) be criminally liable. So, if David prays for the Lord to kill his enemies, or if I poke a voodoo doll to cause pain to a senior colleague, with the state of mind that the relevant statutes require for the crime in question, I should be convicted. But, I probably won't be.
> Still, why should the law treat a attempt to kill via a hex as "inherently" impossible, but an attempt to kill with an unloaded gun as merely impossible in fact?
> Rick Garnett
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