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Bar News - June 17, 2015

Opinion: ‘Is That Illegal?’ – Boiling Down the Law for My 5-Year-Old Son


My 5-year-old son, Isaac, like most kids his age, has a penchant for asking questions. Whenever I say someone is tall, he invariably asks if said person is taller than Robert Wadlow (he happens to know that Wadlow was the tallest person ever at 8’11”). Whenever I mention that someone is old, he wants to know if he or she is older than Jean Calment (the oldest verified person at 122 years old). He is disappointed when I answer no.

His latest stock inquiry leads to more complex answers, ones that his little brain likes to mull over. As we ride down the road, go through the grocery store, or even while watching Loony Tunes, he asks me, “Is that illegal?” The answers get surprisingly complicated very quickly.

After I get cut off in traffic and grumble, he asks me if it was illegal to cut someone off and then if it was illegal for me to grumble at the person. Then he will ask me “what’s the most illegal thing?” I tell him that killing someone is the worst thing a person could do. But then he pushes – What if you kill a bad guy? What if you kill someone as punishment? What about war? Each of these questions forces me to look deeper at the reasons for the rules I accept as true, without question, every day.

Certain things make sense to both of us. He understands immediately that it is worse to do something on purpose than by accident. He quickly sees why it is worse to hurt someone than steal something. And he knows why drunk driving is wrong.

But other things, even after 20 minutes of explaining, still make no sense to him. He can’t wrap his little mind around the difference between “purposely” and “knowingly.” He keeps coming back to the fact that if you did something after thinking about it, it was, no matter the legal jargon vainly attempting to distinguish between the two, done purposely. He has a hard time understanding the reasoning behind driving offenses like operating after suspension, especially when the license suspension was because of unpaid fines. This is mainly because money is mythical to kids. They see us go into stores and swipe these little pieces of plastic, and so the idea of money, in an age where people carry cash less, is something of a fiction. So the notion that someone couldn’t just swipe a card and pay a fine baffles him. But he also has a hard time figuring out why someone would be punished for something that didn’t involve hurting, threatening, or stealing. And after his relentless cross-examination, I am not so sure he’s wrong.

The most difficult thing for Isaac to grasp is the difference between something being immoral and something being illegal. It seems, from his perspective, that everything illegal should be immoral and everything immoral should be illegal. And so, he asks me, is being mean to his little brother is illegal? When I answer no, he seems surprised and then a bit encouraged. When I hold open a door for a woman, he asked me whether it is illegal not to do so. I told him no, and then I explain that it is not enough to just avoid illegal things – that a good person goes above and beyond that. He still seems puzzled.

It’s difficult to talk about discrimination with Isaac. To him, it absolutely should be illegal 100 percent of the time. And when I tell him that it is sometimes, but not others, he refuses to accept this answer. I tell him it is always wrong, but not always illegal. To him, equality is obvious. He is dumbfounded to learn that there aren’t an equal number of men and women judges across the country (I did mention with pride how well New Hampshire does on this account), noting that, “Mommy is smarter than you,” and he’s correct about that.

My 5-year-old’s conception of the law is primitive, but fascinating. Where the law is intuitive, he understands. When the concepts diverge from common sense, like the legal fictions that comprise criminal mental states, he doesn’t. I’m glad he doesn’t see why discrimination is allowed, even in limited instances. And its interesting to have to explain and justify the rationale of legal concepts to someone in simple terms. It also underscores just how intricate our legal framework is – free thought versus bigotry, legal principles versus moral judgments, and responsibility and blameworthiness. Now, if I could just figure out how to explain to him the legality of Sylvester’s pursuit of Tweety Bird.

Tony Sculimbrene

Tony Sculimbrene is a public defender based in Nashua.

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