Thursday, October 08, 2015

Punishing The Sick

One Man's Freedom Chapter XV
by Edward Bennett Williams
pgs 245-248

Jacques Ferron was charged with the felony of sodomy with a she-ass at Vanvres, France, in 1750.  He was haled into court and given a full trial in accordance with the criminal procedures of the times.  Witnesses called by the prosecution testified they saw him in the act of coition with the animal.  They were vigorously cross-examined by his defense counsel, but remained unshaken in their testimony.  Ferron took the stand and swore the accusation was false.  His counsel called defense witnesses who either lent support to Ferron's story or testified to Ferron's general good character.  After receiving all the testimony the court pronounced Ferron guilty, sentenced him to death by hanging and forfeited all his worldly goods to the state.

With the exception of the punishment meted out, nothing in the trial of Ferron was strange or substantially different from our own procedures.  What makes the prosecution noteworthy by our standards is the fact that the animal was tried along with Ferron as a co-conspirator in the crime.  This was in accord with the custom of the day.  If adjudicated guilty, the animal faced execution by hanging or burning in the public market place.  All of the requirements of due process were observed.  Defense counsel was appointed and he was permitted to cross-examine the prosecution's witnesses and offer evidence in defense.  The theory of defense for the animal was that she had not been a willing participant in the crime, that Ferron had exercised powers of coercion.  Witnesses were called to testify.  The prior of the convent and some of the leading citizens of Vanvres testified that they had known the she-ass for several years and that she had always shown herself to be virtuous and well behaved at home and abroad.  They jointly signed an affidavit that she had never given occasion of scandal to anyone, and that she was "in word and deed and in all her habits of life a most honest creature."  The document was executed at Vanres on September 19, 1750, and signed by Pinteul Prieur Cure and other community leaders.  As a piece of exculpatory evidence it must be regarded as unique in the history of modern criminal law.  The testimony and the affidavit were persuasive with the court, and after deliberation, a verdict of not guilty was pronounced on the animal.  The court found that she had not participated in the crime of her own free will and had been the victim of Ferron.

The trial of Ferron and his co-conspirator is one of the many recorded cases in which an animal was made a defendant in a criminal prosecution.  The history of the Middle Ages is replete with accounts of such trials.  Animals charged with killing human beings were tried for murder exactly as human beings were.  After a full trial in which all of the amenities of due process were observed, the court would make its finding.  If guilty, the animal was executed by hanging, burning or being buried alive.  E.P. Evans, in his remarkable treatise on The Criminal Prosecution and Capital Punishment of Animals, tells of over 200 animal prosecutions from 824 through the early nineteenth century.  Horses, bulls, pigs, oxen, goats, dogs, cows, sheep were defendants in such cases.

We find the stories of these trials either shocking or incredible, or both.  The concept of putting a dumb animal on trial, adjudicating it guilty of felony and sentencing it to death makes us recoil.  We find execution of an animal after trial more macabre and revolting than the execution of a human.  It's not because our standard of values vis-a-vis humans and animals is distorted.  Rather it's because we reject the idea of punishment for the morally irresponsible.  We have recognized the necessity for differentiating in our treatment of the rational and irrational.  It is the application of this recognition to rational and irrational humans that has plagued the best minds in the law for the last hundred years.

The late Judge Jerome N. Frank summed up the great dilemma of criminal justice a few years before he died:  "Society must be protected against violence and, at the same time, avoid punishing sick men whose violence drives them, beyond their own controls, to brutal deeds.  A society that punishes the sick is not wholly civilized.  A society that does not restrain the dangerous madman lacks common sense."

But how should society distinguish between those who should be punished for the crimes they have committed and those who should be hospitalized because their crimes are the product of mental illness?  The superficial answer is that society should hospitalize those who are insane and punish those who are sane.  But that answer merely calls forth the real questions that beset the courts.  How does society decide which is which?  How does society distinguish, for the purpose of fixing criminal responsibility, between the rational and the irrational, the sane and the insane?  What does it do with a man whose mental illness makes him a useless citizen but not a raving maniac?

Down through the years the law has been brushing these questions aside.  Men who are mentally ill have been sent to prison, have served their terms and have come back into society, still mentally ill and ready to commit crime again.  This has happened because the law has seen fit to send to hospitals only those who are totally deranged, to acquit by reason of insanity only those in whom mental illness has reached its ultimate, destructive form.  This is like sending to a hospital only those who have serious cases of typhoid while leaving those with mild cases at home to care for themselves.  The mild case, unless properly treated, is a constant threat to society.  The milder forms of mental disease, while not making raving maniacs of their victims, can lead them to commit crime time after time.  Too often, when a man has committed one crime after another, society has not paused to ask why.  Instead, it has sent him to prison again.  If it had asked why, it might have found a man who was mentally ill.  It's easier not to ask why.  It's easier to send to prisons men who should be in hospital wards than it is to face all the problems inherent in squarely confronting mental illness.

Note: People with mental illness aren't actually prone to violence

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