The law is the same for everyone, but there are still enough situations that a judge will look at differently. Think of (combat) sportsmen who physically hurt each other, or an insulting joke made by a cabaret artist. In his dissertation, PhD student Sven Bakker of Erasmus School of Law mapped out these kinds of exceptional situations. He studied many rulings and concluded that the law could provide more clarity for some of these exceptions.
When kickboxer Rico Verhoeven stepped out of the ring with a battered face last October, few people will have thought that his opponent had crossed the line. In a kickboxing match, you run the risk of getting hit, while those same punches outside a match are usually considered assault and can lead to criminal prosecution. "But why do we think that and how does a judge deal with these kinds of situations? These are the questions I want to answer in my dissertation. Especially because these kinds of exceptional situations are not included in the law," says PhD student Sven Bakker of Erasmus School of Law.
A sports match is an example of a setting in which participants are usually not prosecuted for actions that are considered punishable in other settings. Think of a heavy tackle in football. Other game situations, such as a game of badgers that has gotten out of hand among students, also do not readily involve a judge. Something similar can be seen in healthcare; a doctor who causes a patient pain will rarely be prosecuted. The same goes for a rapper or a cabaret artist with provocative or insulting lyrics; in many cases they can appeal to artistic expression and freedom of speech.
Rap about Jews
"Somewhere, of course, there is a tipping point where something does become punishable. I have tried to approach that tipping point," explains Bakker. For this purpose, he examined many statements, for example those of a well-known rapper. That artist was convicted of group insult because in his lyrics he said he would not shake hands with 'faggots' and that he hated Jews 'more than the Nazis'. Bakker: "Interestingly enough, the court initially acquitted the rapper because his statements fell under the umbrella of artistic expression. At the court of appeal and the Supreme Court, however, it was ruled that the rapper actually abused this freedom in order to insult groups.
Too little hold on the law
A judge in such cases must weigh various interests. The judge will want to protect population groups, but at the same time offer space for free, creative expression. "In these kinds of cases you see that judges have little grip on the law. It is very difficult for a judge to determine when punishability because of group insult or artistic expression weighs more heavily." It is striking that none of the examples mentioned are explicitly included in the law as exceptions (as written grounds for punishment). This means that a judge is strongly at the mercy of his own interpretation of punishability, which, according to the researcher, leads to differences between court decisions.
So is it an idea to include the most obvious reasons for impunity in the law? "I can partly see the value of that, but not for all these cases. Suppose you were to exempt artistic expressions from punishment by law, then the judge would still have the task of judging whether something is art, and an unjustified signal might be sent out that insulting or offensive art always goes unpunished. I don't think that is desirable."
In the case of sport or play, the inclusion of impunity is already somewhat more obvious: "By entering the football field, for example, you are in fact consenting to the expected actions in which you can get injured, such as a slide. Such conduct is easier to accommodate in a legal ground for impunity. The criminal court still has the option of allowing undeniably serious infringements of the rules of the game to go unpunished. Think, for example, of actions that, in the game, produce a deep red card, such as a flying tackle without the presence of the ball. Incidentally, in the former Netherlands Antilles, a ground for exclusion from punishment for sports and games situations has been included in the law."
Still, it is not Bakker's intention to have all exceptional situations laid down in the law as well as possible. "With my research I mainly want to provide clarity and introduce more systematics, so that people can better assess what is or is not punishable and the criminal courts can better deal with specific exceptional situations. It would be great if the judges could eventually do something with my recommendations.
On Thursday 9 December Sven Bakker defends his thesis 'Exceptional exceptions in criminal law' at Erasmus School of Law.