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The National Council on Identity Policy

The Heart of Violence & The Law

lawfundamentals.NCIDPolicy.org

The National Council on Identity Policy (NCIDP) was born of the struggles of one tenacious survivor of domestic violence and stalking. The NCIDP continues her work with the help of many. Read more about the NCIDP...

A "VIOLENT ASSAULT" is any "mischief upon", any impairment of, the autonomy of another human being: any cause of insecurity in the sense of autonomy of another human being.

See a brief but gripping Case Study that illustrates the legal meaning of this all too well (including the "Editor's Note") - Case Study: The Hate that Kills at Tom Waddell Health Center.

In 1707, the Queen's Bench decided a violent assault case, Keeble v. Hickeringill.

In that case, the justices of the Queen's Bench found unanimously that a "violent assault" had been committed upon the victim by the defendant by the commission of a "mischief" upon the victims personal and rightful autonomy. The perpetrator never touched, physically, the victim.

Bizarrely, the case is studied in modern times almost exclusively by lawyers in the context of the practice of business law. As it happens, the "mischief" of the defendant that had imposed upon the rightful autonomy of the victim was the right to engage in a business activity, and modern practitioners of business law find it informative in the business sector. This seems bizarre because the case was decided upon the basis of individual personal right and violent personal assault, and the fact that the personal right involved was the right to engage in a business activity was merely coincidental to the basis upon which the case was decided.

The case better informs us, consequently, on the very heart of the principle of "violent assault", both as it is held at law and as it is in sociological meaning.

As the Queen's Bench found it, it was the act of imposing a "mischief" upon an individual that constituted violent assault, not any act of physical impact struck upon an individual. That is, imposing upon a victim's personhood or livelihood, imposing insecurity upon an individual's sense of personal autonomous self or sense of safety or security, constituted "violent assault".

In other words, it is not the blow causing the black eye that is the violent assault, it is the induced fear of the next blow that might yet come and might yet cause another black eye, or worse [an insecurity that another arbitrary blow or any other arbitrary assault could come again at any time], that constitutes the violent assault.

This is a profoundly insightful and realistic understanding violence, the germination of violence, and the impact of violence. It goes right to the heart of all that violence is and means. It has been our legal understanding of violence at least since this case was decided in 1707 – more than 300 years.

This is how the sport of boxing and other impact sports can be legal, rather than being mutual felony assault: the clear framework and structure of boxing, constraining the physical impacts to the ring and in accordance with specific and well-understood rules, induces no fear of other blows later outside that framework and that ring.

This principal also informs us as to why it is that crime victims historically are generally reserved the right to not "press charges": that is, if the victim genuinely does not feel imposed upon or otherwise fearful or insecure in the future exercise of rightful autonomy by the act(s) of the perpetrator(s), then the victim may not need societal intervention, the machinations of justice, to restore such sense of security.

Any absence of a society's system of justice to give victims such recourse, such truths, and justice itself is either a society of boundless anarchy, or a society of crushing tyranny.

In this light, then, it becomes easy to understand why psychological terror crimes (stalking, domestic violence, corruption, rape, hate crimes, identity crimes) are some of the most violent of all personal crimes, even if the victim is never physically struck by the perpetrator(s). Indeed, it is by awareness of this fact throughout history that instruments and methods of "torture" have always been a means of creating psychological terror – the very essence of "violence" at its most extreme.

This awareness of the meaning of "violence" further enlightens us to the profound violence that identity crimes of any kind, crimes that strike at the heart of individual personhood and sense of self and self security; it is then apparent that such crimes are inherently and profoundly "violent assaults" of the most extreme and personal nature. Most who have been the victims of any form of identity crime can heartily attest to the sense of fear and violation that they experienced from such crimes, and therein lies the violence in it. We see from this how profoundly and inherently violent, for example, it is to dishonor or denigrate any individual's own chosen identity and sense of self in any way. Whether it is teenage boys on the school ground calling a peer a "fag" as an epithet of hate, or a rapist telling a victim that she is "a slut that deserves it", nothing is more inherently violent to any one individual person than violent assaults that strike at the core of individual personhood, identity and sense of self.

Finally, in the light of understanding the true meaning of "violence", we find greater depth of understanding of the extreme form of violence against society and people that crimes of corruption are: imposing destruction of the meaning and force of the rule of law upon society, rendering the rule of law meaningless, forcing uncertainty and fear upon all of society on a grand scale with each and every individual act of corruption, and perpetrations of "violent assault" upon individuals sincerely attempting to be good and honest members of society. The U.S. Supreme Court recaptured this meaning of the Keeble case in 1928 and 1966, writing: "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." (Miranda v Arizona (S Ct., 1966), quoting Olmstead v. U.S. (S Ct., 1928, Brandeis dissenting)).

The understanding of violence that the Queen's Bench provided us in Keeble v. Hickeringill, still very much the fabric of the rule of law in our modern times, is actually a much more logical and realistic understanding of violence than attempting to quantify it in terms of physical blows [which modernly is actually distinguished as battery], as to do so largely ignores the sociological and psychological impact at the heart of violence that laws are intended to prevent - FEAR and insecurity. The insight into violence provided by this case is critical to real sociological and psychological understandings of violence, and to any proper legal understanding of violence.

IMPORTANTLY, as the Queen's Bench framed its decision in Keeble v. Hickeringill, it also becomes apparent that non-human legal entities (corporations and other legal business entities, governments and governmental bodies) cannot themselves be victims of violent assault because of their lack of human emotion. They, as purely legal constructs lacking any human emotion and capacity for fear, and lacking any individual personal autonomy or personal right, cannot experience the emotions of fear and uncertainty in any regard, let alone in regard to nonexistent personhood.

See a brief but gripping Case Study that illustrates the legal meaning of "violent assault" all too well (including the "Editor's Note") - Case Study: The Hate that Kills at Tom Waddell Health Center.

Some final notes about Keeble v. Hickeringill, for those interested in such details:

The case appears to have risen in the consciousness of practitioners of business law within the United States late in the 19th Century. Some partial reports of the case seen in late 19th Century U.S. legal literature reported only the final 'what' of the decision; whereas the future applicability of such decisions generally hinge entirely upon the 'why', the reasoning and statements of the meaning of the law, made by the deciding bench. That is, the late 19th Century U.S. literature reported only that the plaintiff won his case that ultimately had the effect of allowing him to continue his legal business activities unmolested, but omitted the legal reasoning upon which the decision hinged.

There were even seen some erroneous claims in that late 19th Century literature that the case 'may have been decided' [those late 19th Century authors themselves were unsure and qualified their statement, as our paraphrase of them is intended to reflect] upon the basis of the English statute that the Queen's Bench briefly mentioned in determining that the plaintiff's business activities were not prohibited by that statute. In actuality, this consideration was as secondary to the decision as was the nature of the rightful activity, which only just happened to be a business activity. In considering the statute, the Queen's Bench sought merely to ensure that no lawful cause to interfere with the business activity could be found therein.

A reading of the contemporaneous reports (circa 1707) of the decision of the Queen's Bench, as it was reported to have been stated in the courtroom, reveals that the underlying reasoning upon which the decision hinged was the autonomous right of human personhood of the plaintiff upon which the defendant was found to have committed "violent assault" by wrongfully "imposing" upon the plaintiff's rights and harming that plaintiff's rightful exercise in the personal liberties of human personhood. This unlawful constraining of personal liberty was then regarded little different from an unlawful physical constraining of a person's physical being, what we would call today 'unlawful restraint', 'unlawful imprisonment' or 'kidnapping'. Indeed, the arrival of the legal term "battery" to distinguish assaults involving physical blows may have occurred later during subsequent reigns of increasing tyranny to diminish the violence of that tyranny at law (so it appears to cursory study).

A mere 70 years later, the colonies that would become the U.S. were fighting a revolutionary war to ensure that the fundamental meaning of the Keeble v. Hickeringill case was preserved; that the near equity of severity at law between harming personal liberty and harming a person physically was defended from rising tyranny; that the then well understood principle that wrongful constraints of liberty is violence was to become the founding of a nation.

Ironic that merely another 100 years later, the meaning of this case was, apparently, largely lost to U.S. legal scholars.

Another 100 years further along (that puts us into the late 20th Century, if you are losing track), and modern legal scholars could again well understand the full meaning of the case, thanks to modern globalization and technology, and some legal anthropology. Yet many modern legal practitioners remain unaware, even into the Twenty-First Century, of the true legal scope of the the term "violent assault"; unaware that any slight constraint unjustly imposed upon personhood or personal autonomy is the very essence of all that violence is in humanity and at law.