Does an unintentional lie hurt?

There’s a rhetorical question for you. If a guy lies to you, truly believing he is not lying, is that really a lie? Here’s another way of thinking of it: does an unintentional hard knee to the privates hurt?

The law, a problematic beast at best, has an intent requirement for many crimes. If you don’t have the required malicious intent to cause harm, you are not, under these laws, held responsible for committing a crime or even a tort. Malice has a strict legal definition, which comes in several varieties, express malice, malice aforethought, implied malice, etc. most of which boil down to the deliberate, intentional infliction of illegal or tortious harm. An act done knowingly (or in some cases just recklessly) to harm another, without just cause or excuse, constitutes legal malice.

When I complained of malice in the hard-heartedness of a lawyer friend’s increasingly aggravating responses to my aggravation, he told me that it plainly was not the case — he neither felt nor expressed malice, merely his opinion of the facts on the table as he understood them. Therefore, by the legal definition of malice, the definition he assumed I was referring to, with its requirement of no just cause or excuse, it was impossible that he had acted with malice, since he had, alternatively, no intent to cause me harm, nor (he added, sub silentio), lack of just cause or excuse if he had, unintentionally, caused such harm.

This is what comes of arguing with a lawyer, trained to parry and thrust whenever presented with even a straightforward assertion — to be “malice” it all hinges on the strict definition of intent or lack of just cause or excuse, doesn’t it?

I had to resort to other words to describe his unsympathetic stance: ill will, spite, hostility, for as the law notes:

malice in law
:implied malice in this entry
2: feelings of ill will, spite, or revenge 

NOTE: Such feelings are usually not an important component of malice in legal consideration unless punitive damages or actual malice is an issue.


In the ordinary use of the word malice, among non-lawyers, it is interchangeable with “ill will”, its synonyms are spite, malevolence, animosity, hostility, bitterness, rancor, enmity.

“Yes,” says the lawyer calmly, “but don’t all of these things require an intention to cause harm? If I am accidentally bitter, or arguably hostile, or seemingly spiteful, in your subjective estimation, how can you fault me for that? Accident negates will– there can be no ‘ill will’ without an intentional act of will, as you will have to admit, if you’re being honest. Since any harm I may have caused was purely unintentional and inadvertent, what are you complaining about?”

Might as well argue with a tumor.

This “intent” business is where the law gets sticky. An ordinary person assumes that a powerful man who lies over and over about a stolen election, spends $50,000,000 for media advertising of that deliberate lie, organizes a Stop the Steal rally (at a cost of $4,500,000) on the day the election results are being certified, shows an inflammatory two minute video about widespread voter fraud committed by riotous haters of American freedom, before speaking at length about the many detailed lies he’s already told, (the 205,000 corpses voting in Fulton County, to take just one), who repeatedly tells his crowd that they are the victims of a stolen election and that they have one last chance to fight like hell to stop it — I mean, once you’ve done all that, and a violent riot erupts, the most passionate of your crowd storming and ransacking the Capitol to Stop the Steal — it would seem to the ordinary person that you have set out everything needed to prove this fellow is responsible for the insurrection.

The law, however, often imposes a higher bar than common sense about what seems to be clear cause and effect. It often requires proving the subjective intent of the alleged perpetrator, a deliberate course of conduct, knowing that he was lying, and lying to deliberately bring about the foreseeable result his actions caused. Without this kind of legal rigor … well, you just have mob rule (says the law).

Similarly, when the same guy called the Secretary of State of Georgia and tried to convince him and his lawyer to throw out almost 12,000 ballots with arguments like “fellas, I’m talking about 11,780 votes here, give me a break…” to establish that he violated Georgia law about soliciting interference in an election we must prove that he intended to solicit that illegal interference. What if he did it by accident, truly believing that the 11,780 votes he wanted thrown out had really been cast fraudulently?

I went to law school, passed the bar exams of two states, practiced law for years, and I still have a hard time getting my brain around this shit. In the case of the Georgia law, it’s as if Trump ran his finger down the text of the law while he was trying to convince the Georgia Secretary of State to throw out results that had been recounted and certified three times, and made sure to violate every provision of the law. He went down the list: solicit, cajole, threaten, promise, influence, check! making sure to explicitly violate each provision and every iteration of the crime.

It may be, after the grand jury is done hearing the evidence, that he will be indicted, tried and convicted under this law, which has a mandatory two year prison sentence. I would not be unhappy to see this result, though millions might be, literally, up in arms about their leader being unfairly witch hunted this way.

The same goes for repeated lies about the totally non-threatening love fest at the Capitol on January 6. Cops beaten by the mob? That cop who lost an eye? The one killed? The many videos of anti-police violence? All irrelevant and very misleading, the protesters were peacefully expressing their first amendment rights (unfortunately deprived of their second amendment ones) and the far less than 200 seriously injured that day were injured by over-enthusiastic hugging and kissing. Hugging and kissing, you merciless motherfuckers! Now, prove I KNEW I was lying, asshole! [1].

Ignorance of the law is no excuse, as every school child learns. Just because you don’t know it’s illegal to do X doesn’t mean you won’t be held responsible for violating the law. Unless, of course, you retain diligent, skillful counsel who can create a reasonable doubt about whether you had the required mental state to have committed the crime. Slander, libel, defamation? No worries, if we can show you honestly believed the lies you were telling were true (no malice!).

Does this make sense to you, kid?

As I tap at the keyboard they’ve wrapped up the second day of the trial of Derrick Chauvin, the former police officer who, for 9 minutes and 29 seconds, kneeled on the neck and back of the handcuffed George Floyd, who pleaded for his life until he lost consciousness, while Chauvin continued to keep his knee on Floyd’s neck, long after he was motionless and silent.

The defense is making arguments, as defense attorneys are paid to do, which hinge on this violent constriction of Floyd’s blood and air flow not being what actually killed Floyd. The defense claims he died of a heart attack, caused by adrenaline and the illegal drugs he had in his system at the time of his death. Nothing to do with being pressed to the ground by a large man with his knees on his neck and back until he stopped breathing. Nothing whatsoever. Chauvin was afraid, because a large, hostile crowd was intimidating him. And so on.

It could work. It doesn’t take much to convince one or two in the jury of a plausible sounding excuse, based on actual selected facts. Hmmm. Coroner found fentanyl in his system, he’d been resisting arrest for a misdemeanor (allegedly passing a counterfeit twenty) so there’s the adrenaline, had a bad heart, big as he was, he couldn’t take somebody kneeling on him for eight or nine minutes — he freaked out and died of heart failure. Nobody’s fault, the tragedy, except perhaps the dead guy, who put everybody through all this pain…

Notice, no lying whatsoever required, just reframing. It wasn’t the continued knee on his neck that killed him, with the weight of a grown man behind it — it was a bunch of other things. Not murder, just a fucking tragedy. Not manslaughter, just a cop doing his difficult job under terrible circumstances, with a bunch of unfriendly natives angrily hassling him and mercilessly making videos of him in the course of his official duties. Chauvin didn’t kill George Floyd, George Floyd’s bad choices killed George Floyd.

Sometimes a lie is neither intentional nor unintentional, sometimes shit just happens when people are doing their jobs and we have to make sense of it the best we can. Or maybe we are lying to ourselves that we are not lying. Who’s to say?

Who’s to say?


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