Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Monday, 22 April 2013

On 'An American Tragedy' and the criminal law

An American Tragedy was a hugely popular novel by Theodore Dreiser, first published in 1925. It is probably not much read now (though it was filmed at least twice), but it has a fascinating connection with the criminal law. In the first place, which is not so unusual, the novel was based on an actual case. More unusually the novel then became the basis for discussion of the criminal law.

The plot of the novel concerned an ambitious young man, Clyde Griffiths. Clyde gets his working class lover, Roberta Alden, pregnant but he does not want to marry her, because he hopes for a marriage that would advance his career. When he is unable to obtain an abortion for Roberta, he plots to kill her. Telling her that they should run away to get married, they travel to the Adirondack Mountains in upstate New York. Clyde takes Roberta out in a small boat on a secluded lake, planning to capsize the boat and swim to shore - knowing that she could not swim. While in the boat he got cold feet about the plan and realised that he could not follow through on it. However, there is an accident and the boat in fact capsizes; Clyde swims to shore and Roberta is drowned. When Roberta's body is found, Clyde is arrested and charged with capital murder - and eventually executed.

The plot of the novel was based on an actual criminal case that had taken place in 1906 when an ambitious young man called Chester Gillette (note the same initials) had drowned his pregnant lover, Grace Brown, in Big Moose Lake. As in the novel,  it appears that Gillette had convinced Brown to come on the trip with the promise of marriage. He had taken her out on the lake, but had beaten her with a tennis racket and thrown her overboard - and so when her body was found there was clear evidence of foul play. Gillette was captured soon after, having made little attempt to escape, and was tried and convicted of her murder, and executed by electric chair at Auburn Prison, New York.

In spite of the similarities, there are clear differences between the two cases - perhaps reflecting the fact that a novelist has greater opportunity and licence in constructing the interior mental states of his protagonists. The biggest difference in the fictional version is the fact that the reader knows that Clyde has decided not to kill Roberta. In spite of having taken steps towards the completion of his plot, he has reached the point where he has gone back on his original intention. The double irony in the novel is it is at precisely this point that the accident takes place which results in the boat capsizing, and that then Clyde is tried and prosecuted on the basis of evidence of his original plot - and the appearance it gave of an intention to kill, even though he no longer possessed that intention.

The novel sold well (over 50,000 copies by the end of 1926), in spite of critical reviews, and in order to boost publicity yet further the publishers came up with idea of a prize essay contest: the topic "Was Clyde Griffiths guilty of murder in the first degree?". So far so ordinary, but what makes this unusual is that the contest was won by a law professor, Albert Levitt, of Washington and Lee University, who had previously written to Dreiser praising the construction of his 'beautiful legal problem'. He was an unusual character, trained in theology and law, and linked to a circle of progressive academics, and he had recently written a series of papers on the question of mens rea in the criminal law.

Albert Levitt
Levitt's prizewinning essay seems to have received only limited circulation.  It is, nonetheless, a fascinating document. It is in four parts, each of which addresses a different dimension of Griffith's guilt. The first part addresses his legal guilt. On this Levitt is clear: this could not be murder in the first degree. He had no intention to kill at the time the accident took place, and was not under any duty to rescue Roberta. The second part then addressed the question of whether he was guilty under Christian ethics. Here he was equally clear that Clyde was guilty: he had evil in his heart and this may have contributed unconsciously to his actions. He accepted the opportunity offered by the accident, and made no effort to rescue Roberta. Third, he asked whether the jury were right to convict. Here, he praised the formulation of the legal issues in the trial in the novel, and argued that it was reasonable for a jury on the evidence not to believe his claim that he had a change of heart - and to convict on that basis. In other words, in the absence of clear evidence of this change, they were entitled to convict. Finally, and most interestingly, he addressed the question of the extent to which society or the state was responsible. Here he was highly critical of state policies on sex education, which he argued taught outmoded christian doctrine, rather than teaching responsibility about sex, and he argued that the availability of birth control or abortion on demand would have prevented the murder. The state then was to blame for all three deaths.

It might seem like cheating for a law professor to enter and win the contest - he at least seems to have some advantage over the ordinary reader. But the essay offers much more than just an analysis of legal doctrine. It is a fascinating snapshot of progressive views about criminal law from the early part of the century and as such it deserves to be better known.

[The essay was rediscovered and reprinted in 1991 in a journal called Papers on Language and Literature with a short introduction by Philip Gerber. Unfortunately this is not freely available online. Those with access to a university library might want to check it out, though.]

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