Doing vs. Inducing
My post on tortious interference with contract vs. alienation of affection led to an interesting discussion, but not really the one I was aiming for here, so let’s try one more time, taking this to a more abstract level. This is NOT about whether you support or oppose alienation of affection laws. If you want to weigh in on that issue, feel free to do so here, here or here (though if you do, know that A of A does not require the defendant to be romantically involved with a married person; anyone who encourages anyone else to divorce a third party is potentially liable). Setting aside the specific topics of divorce and breach of contract per se, is there any other X for which it can reasonably said that either:
- It is morally acceptable to X, but morally unacceptable to encourage others to X; or
- It is morally unacceptable to X, but worse to encourage others to X.
And if the answer to either #1 or #2 is “yes,” I’d really, really like to know why.
Bonus question: is there any other area of law apart from divorce and breach of contract, where either of the above principles is public policy? For example, does any state impose a stiffer penalty on those who suborn perjury than on those who commit it themselves? Punish the person who solicited a murder with death while the person who actually carries it out can only get life? Etc. The only other examples I can think of are drugs and prostitution. The former rests on the mildly paternalistic but perhaps defensible view that people who throw good money at a a bad habit don’t know what they’re doing, while those who profit from this bad habit do. The latter rests on the equally paternalistic, but fundamentally much sillier, notion that people who throw good money at a different bad habit do know what they’re doing, while those who manage to profit off that bad habit somehow don’t. Or is there some other, less ridiculous rationale for this disparate treatment that I’m missing?
October 19th, 2009 at 10:31 pm
I think most people feel that Bill Clinton was more wrong in suborning perjury than Monica was in committing it. My guess is that when a powerful, knowledgeable person suborns perjury from a scared, weak, ignorant one, the subornor is treated as the more guilty.
I also wouldn’t be surprised if a mob boss who orders hits is considered more guilty than the people who actually carry out the hits.
October 19th, 2009 at 11:01 pm
Do we really think suborning perjury is worse than committing it, or is it just that the suborner was the President while the subornee was a lowly staff member? Suppose Monica had suborned perjury from Bill. Same analysis?
Ditto for mob bosses vs. hit men; they don’t just “suborn” the crime; they order it from a position of power. My understanding is that Sammy “the Bull” Gravano got away with all sorts of crimes by pleading to being the lowly ordered assassin, when in fact it later came out that he had put his own bosses up to ordering the hits he turned around and carried out. Presumably, he wouldn’t have gotten the sweet deal he got if this had been known from the outset.
October 19th, 2009 at 11:22 pm
You’re right: the power relationship matters. That’s why some might consider a weak husband to be less guilty than his seducer.
I don’t like these laws, but I am just trying to take your challenge seriously.
October 19th, 2009 at 11:22 pm
For #1, touching your weenie?
#2 is easy. Suicide.
Phelps´s last blog ..Killing the Word
October 20th, 2009 at 1:30 am
LTEC, I like your reasoning, but let’s take it a step further. Suppose that DC (or Arkansas, or New York, or France, or Mars, or whatever the hell other state had jurisdiction over the Clintons’ marriage at the time of the Blewinski affair) had an alienation of affection law. Suppose further that Bill hadn’t just had a little fleeting fun with Monica, but had instead gone on to leave Hillary for her. Now what? Is Bill more culpable than Monica for her perjury, while Monica is more culpable than Bill for his adultery, in both cases because A “merely” committed the act in question while B committed the apparently greater sin of encouraging it?
October 21st, 2009 at 5:42 pm
In Illinois, soliciting for the purposes of prostitution (applies to pimp, prostitute or client) is a Class A misdemeanor (364 days) but patronizing a prostitute is a Class B misdemeanor (six months).
October 21st, 2009 at 5:45 pm
I have only seen it with clients, BTW, because that’s how the police stings are set up. They send out a lady cop as a possible prostitute, not a guy cop as a possible client.
October 25th, 2009 at 2:10 pm
I am against “alienation of affection” laws, but to answer your question: if one has to assign blame for an affair, it would not be completely ridiculous to assign it to that person who flashed his/her thong first.
October 25th, 2009 at 6:33 pm
Fair enough; however, I’m pretty sure neither alienation of affection nor tortious interference with contract requires the plaintiff to prove that the defendant flashed first. In both cases it’s no defense that the breaching party initiated the offending transaction.
October 30th, 2009 at 10:22 am
Doing drugs, vs. Selling drugs.