A legal question

[Jack_Roberts]

Attempted murder is broad. You can put someone in to a coma for 2 months and then they wake up and survive, that is attempted murder. You can shoot someone with a gun and miss completely, that is attempted murder. It would definitely depend on the context and a case by case specific judgement would be the result.

But in the case of the OP. I would say that people take the risk in this day and age when having sex so even today you would struggle to prove that the person did not tell you before hand that they had aids. Unless the female recorded the conversation when he told her that he had aids after the fact.

Even then what would she want in the form of compensation? Money?

[The_Freeman]

A restraining order is a wholly statist entity. It could not exist without systematic coercion. You’re free to hire a bodyguard, of course, but you have no business making everyone subsidize your bodyguard costs through free use of the public police.

No, but you were talking about the fuzzy concept of “personal space” earlier…

Maybe you would need something to serve as legal justification for defending a larger area than normal against someone who had threatened your life, to a much more proactive extent.

I can now see at least one way one could prove damages… The cost of hiring personal security to enforce the aforementioned ‘order’.

I use the term ‘restraining order’ loosely… It’s not actually a legal term here at all. The courts here call it a personal ‘interdict’, which is a term from Roman law.

Courts - absent the compulsive monopoly and public subsidy they today enjoy - would have no more power to issue orders to their customers than Wal-Mart has to issue orders to its customers beyond “Keep Out.”

All that means is that ‘contempt of court’ results in one losing the protection of an arbitrator, instead of him being actively punished by that arbitrator.

I enjoy these kinds of discussions. Legal theory is in such bad repair that rank amateurs, such as you and me, can easily do much better legal theory than all the JDs that Harvard and Oxford combined can produce.

Yes. I am studying to be a legal practioner, for my sins. There’s some theory, but ya, it’s mostly just learning the code… The terribly inconsistent and convoluted code.

[Autolykos]

@Stephen

Yes, because it is criminal intent which is punishable, not the actual physical result. And same thing with torts.

Criminal intent, or mens rea, is traditionally not punishable on its own. There must also be a material act, or actus reus. To punish mens rea per se is to prosecute thoughtcrime.

[Autolykos]

@Clayton

*But [mens rea is] still a part of modern Statist law!! As David Friedman is fond of saying, Western legal systems are roughly 1,000 years behind the state of the art in legal technology since we prohibit a simple legal device that has been around since at least 1,000 years ago called the performance bond which, if recognized as a valid legal device by modern courts, would obviate a great deal of litigation.

According to Wikipedia, performance bonds are widely used in many areas today. Which elements of statist legal systems forbid the use of performance bonds, and in which areas?

[Autolykos]

@Clayton

As I said, I’m speculating, but I believe the common law would, in this very narrow situation, come down on the side that you have a duty to tell the other person you have a communicable disease if you know about it but, on the other hand, it would not be able to compel anyone to do so. Therefore, you would have to inculpate yourself for it to even matter. If you lured someone to your home and fed them poisoned food to try to kill them, that would definitely be a tort. While eating at someone’s house is “buyer beware”, there is an ordinary, human expectation that if someone offers you a plate of food that it is not poisoned. Accidental poisoning (e.g. “I didn’t realize there was Drano in the vegetable oil jar!”) would be a valid defense since we’re talking about a situation where the plaintiff voluntarily engaged in the action that put himself at risk (eating) where accidents are generally not a valid defense against trespass torts (e.g. “Oops, sparks flew from my bonfire onto your stand of trees, sorry, it was an accident!”)

Let’s say Bob lures Alice to his home to poison her. He feeds her a meal she does not know is poisoned. Later, she dies. Now, the problem is that Alice freely ate the food and Bob made no promise that he could not possibly have put anything in the food that would kill her so her family is going to have to prove not only that Alice died as a result of eating at Bob’s house but that Bob didn’t merely mix up the drano and the vegetable oil by accident. If Bob ate the same meal and didn’t die or get sick that, in itself, might be evidence against him. The point is Bob is liable for Alice’s death if he did, in fact, surreptitiously introduce poison into the food for the purpose of sickening or killing Alice.

The above sounds to me like you’re sneaking in the concept of mens rea, at least implicitly.

@Clayton

You should be able to see how this analogy applies to sexual intercourse. Bob invites Alice over for an intimate evening, knowing he has a communicable disease and, without telling Alice, has intercourse with her. Now, the mere fact that Bob has a communicable disease is not sufficient to prove that Bob is liable, it must be proved that he knew beforehand and that he did not tell Alice. It would be pretty hard for Bob to inculpate himself. All I’m saying is that if Bob did so inculpate himself, he would then be liable.

What if there was evidence to show that Bob did know beforehand that he had a communicable STD? I don’t think it’s absolutely necessary that Bob inculpate himself.

@Clayton

A restraining order is a wholly statist entity. It could not exist without systematic coercion. You’re free to hire a bodyguard, of course, but you have no business making everyone subsidize your bodyguard costs through free use of the public police.

Could a restraining order be explained in terms of expanding one’s personal space vis-a-vis another person?

[Autolykos]

@Merlin

My idea of dealing with unsuccessful attempts is such: while you are being aggressed, you can kill the guy in self-defense. If the danger fades (he runs away), you loose your right to ‘defend yourself’ by shooting him, while you have accrued no right of retaliation since you have not been harmed (I do not buy the ‘scare’ factor that Nozick and even Rothbard are so keen about, all that counts is physical damage).

Long story short, if he attempts to kill you, you better kill him right there, or else you won’t get a second chance. It seems the only decent way out.

PS: all this on top of the fact that he’ll now find it very hard to find an insurer that’ll pledge for him, as I discussed din the previous post.

How will insurers know that he attempted to murder me? Isn’t that almost asking for some kind of trial to establish legal fact?

[Merlin]

@Autolykos

How will insurers know that he attempted to murder me? Isn’t that almost asking for some kind of trial to establish legal fact?

Indeed. That would require: 1) the victim to willingly report the fact (not clear they’d do so, since they are not getting any money here), 2) some investigation to prove it. The victim might not be willing to go through all this.

But if not, than insurers should not care about the case: after all what affects the insurer is nor every crime, but every crime that gets reported. Thus, if only 40% of crimes are reported (let’s make this up for our argument’s sake), there are two ways in which this can be priced in: either by specifically adding it in our calculation or by running calculations on filtered (truncated) data, in which case that fraction kind of ‘calculates itself’. So, all is well.