Law of the Game on Joystiq: Let the punishment fit the crime

by Mark Methenitis { Aug 14th 2008 at 8:00PM }

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:

We've be hearing a lot about the Thai cabbie killing lately and how it was (or wasn't) caused by Grand Theft Auto. In the wake of that tragic murder, there have been two major groups of outcries. The first has been the call to regulate games; one we have heard all too often. The other has been a call to revise criminal penalties; one which is not only new, but speaks to the core theory behind criminal law: the theory of punishment. Criminal law theory is something that is universal in all of our criminal codes, but isn't often discussed. It's this "theoretical" approach that we'll look at today. You may agree or disagree with my particular thoughts on the theory of criminal law, but it's more important for everyone to understand a theoretical approach to criminal law so that we can come to our own conclusions about true "justice."

The concept of criminal law starts with some basic political philosophy. In order to have a society, there has to be a set of rules by which that society operates. Whether you want to view this as the social contract in a Locke/Hobbes/Rousseau manner or through some other philosophical lens, the basic need for rules and order in a society is more or less the same. This need for rules gives rise to the concept of the law, and one of those concepts is the boundaries of behavior that stray into what we, as a society, feel need to be punished. This is the basis for all criminal law, be it a crime against a person or a crime against property.

Once you've placed theoretical constraints on acceptable behavior, you have to decide what are acceptable punishments. There have been, over time, many theories on which punishment is based. One of the oldest is athe classic "eye for an eye," but more modern interpretations have attempted to balance the idea of actual punishment with the idea of deterrence, the concept that the threat of punishment will keep many from committing crimes altogether.

There is also the question of whom to punish and to what degree should all involved parties be punished. Remember, the actual criminal actor is not always the only one punished. This is the basis behind accomplice charges, among other criminal penalties that involve far more complex issues of mitigating and aggravating circumstances, or particular factors that make the punishment more or less severe. Which brings us back to Thailand and two particular thoughts I've seen presented with respect to game-related violence: games as a mitigating or aggravating factor; and liability for game manufacturers for crimes that copy games.

"Both of these ideas border on lunacy."

Both of these ideas border on lunacy. First, games as an aggravating or mitigating factor in deciding punishment seems to be a loss. Does it make sense to punish a gamer more because he or she killed someone in a way based on a game? Of course not. The fact that the perpetrator is a gamer doesn't make the victim any less dead, nor does it make the crime any different from any other murder. So there's no benefit to giving the perpetrator an extra 40 years because they acted out a game. From the opposite approach, should a gamer be able to claim that the game made them do it? I say this is equally pointless unless it is tied to some concrete mental illness that would otherwise give rise to a potential insanity defense. If you can tell right from wrong (generally the standard for insanity), exposure to a particular game doesn't make right any less right or wrong any less wrong; it's just an excuse to attempt to reduce punishment.

The secondary thought, applying liability to game manufacturers for "copycat" crimes committed by those who play their games is a blatant contradiction to free speech in the US. That's not to say it can't happen in other countries, but the law is relatively clear in the US. In fact, the Supreme Court specifically invalidated hate crime laws that were in conflict with free speech in R. A. V. v. City of St. Paul. More importantly, speech has traditionally only been limited in the case where the speech itself presents imminent lawless action, such as yelling "Fire!" in a crowded theater, or consists of "fighting words," or words likely to instigate a fight. To think about this from another perspective, if game makers are allowed to be held accountable for the actions of players, then why not movie makers? Or authors? Catcher in the Rye has been tied to several people who have committed criminal acts, and yet not only is it still sold freely, to my knowledge no one has ever brought suit against J. D. Salinger, the publisher, or the book seller.

More importantly, these two ideas tie together. If you don't believe that the perpetrator should be able to claim the "game made him do it," then why should the game's maker be liable? On the contrary, if the game maker isn't responsible for what people do with their game, then does it really matter if the game motivated the crime in someone who can tell right from wrong? Doesn't the idea of free speech in and of itself demand some personal responsibility from those who are in their right mind?

These finer points of criminal theory are ones you have to resolve within your own mind, not just with respect to these proposed game laws but with respect to all criminal laws. It's a legal area that few people analyze thoroughly, but everyone should have thought about as it should shape your personal and political actions. After all, if you disagree with a candidate's particular theory of criminal punishment, shouldn't that be a factor in deciding whether to vote for that person, just as you would likely consider the candidate's stance on video games in making an educated decision on whom to vote for? Hopefully much of the fervor will die down as more time passes from the tragic murder in Thailand, and as that dies down so will the hasty calls to revise the criminal system based on games.

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.

Tags: cabbie, columns, crime, criminal, criminal-minds, grand-theft-auto-iv, gta-iv, law, law-of-the-game, thailand

Reader Comments (Page 1 of 1)

Grant @ Aug 14th 2008 8:22PM

well put.
The simple fact that video games are the scapegoat of the time in our now sue happy society does not mean they are any more the ones to blame, they are just in the limelight while people are reaching further to any aspect of blame they can place when something like this occurs.
Rock music and movies both faced similar controversy. To place blame on an art medium such as this is to take responsibility away from the individual, something people often look to do when pointing fingers and want a great explanation than the simple one in front of them.

In modern society, if we are going to put blame on something else that does not DIRECTLY cause the action, products of creativity will simply cease to exist due to being just to risky to create.

emirabal @ Aug 14th 2008 9:00PM

WELL PUT!!!

Doug @ Aug 14th 2008 8:31PM

Joystiq, you are so afraid of regulation, you deny the obvious and thereby bring regulation closer to reality.

Serious sex and violence is available with an M-rating. So is mild-shooting of cartoony alien creatures. This is inconsistent. The public is going to go after ALL games until they are properly rated.

Why not support an AO rating for provocative games? It would solve this problem. You're fighting a losing battle otherwise, no matter how much you argue.

Monkeys Suck @ Aug 14th 2008 8:40PM

There is an AO rating already, but this also wouldn't solve the problem. These games could still be sold to underage children, or their parents still would get it for their children. The bigger problem, moreso than properly rated games, is proper parenting. Even if the games aren't rated properly, everything possibly offensive is listed on the back of the box. Parental controls are also usually never set for a video game console. Proper ratings won't solve it if the parents don't parent and the shop owners are still selling the games to kids (Yes, I know there are laws in place, but they aren't always followed)

Doug @ Aug 14th 2008 8:53PM

An AO game could not be sold to minors, even if a parent was standing right there passing the credit card. It WOULD remove liability from the game makers and put it on the shop-keepers, just like pornography or Jack Daniels.

Rockstar admitted GTA4 is for adults only. And yet, it gets an M.

Gamers come here venting and raging against game critics... but that isn't going to solve the problem. Proper ratings will. And we're not there yet.

wickedpheonix @ Aug 14th 2008 9:03PM

There is an AO rating, and it would not be too hard to make sure that game retailers follow it the same way that movie theaters make sure that NC-17 ratings are followed. The real problem is that:

1) AO represents explicit sexual content, which is deemed "vulgar" by law and an exception to free speech so that its sale can be regulated by the age of the consumer. If it does not have explicit sexual content, it is rated M so that it can be sold to people under 18.
2) Given that AO means that there is explicit sexual content, it goes to reason that GTA4 not be rated AO since there is no explicit sexual content in GTA4, and therefore GTA4 needs to be rated M.
3) Since Halo and GTA are indisputably different in age-appropriateness, there needs to be another rating between T (13+) and M (17+) - something that is 15+ (keep in mind, PEGI has a 16+ rating and Australia has a 15+ rating).

4) (slightly off train of thought) AO represents a defacto ban seeing as how no major retailer stocks AO games, the only place to buy an AO game is online and that severely restricts potential sales for publishers, so virtually any time a game is rated AO in the US developers go back and try to get an M rating - akin to how Bethesda just had to censor Fallout 3 so that they would get more sales (the alternative being zero) in Australia, SO... you wouldn't want to encourage the AO rating anyways.

umm....hello??? @ Aug 14th 2008 10:11PM

NC-17????????!!!!! LOLOLOLOL!!!!!!!!!! what a stupid rating. it's the SAME FUCKING RATING as R-Rated movies....nobody under 17 should be admitted. XXX was the better rating--nobody under 21 should watch the film. what a joke the movie rating system is--and it has moving standards based on societal changes--ever notice that how much filth they spew on daytime TV nowadays?? PG-13 movies in the 80's weren't allowed to have many of the swear words they say nowadays--the only thing that's tame in PG-13 movies is the amount of skin allowed to show.

anyways, the Rating systems are in place for both movies and games--if the parents are too stupid to comprehend the M=mature along with the numbers 17+ then how the hell did they figure out that Hasbro boardgames for kids 6+ meant?

people need to learn to take responsibility for their own actions. and you know what? it's a shame that the United States ISN'T more like Thailand. you steal? buh-bye to the hand.

BigD145 @ Aug 14th 2008 10:35PM

NC-17 is the loophole rating to toss in things that fit the R rating but don't fit the ideals (monogamous partnerships, heterosexuality, abstinence, etc) of the people that actually do the ratings. Blowing someone's head open with a .50 cal is ok, but two girls "bumping uglies" in bed? Nooooo. That's bad. NC-17 that sucker so it has a harder time getting published.

BigD145 @ Aug 14th 2008 10:37PM

Before I forget. No major retail store will carry an NC-17 rated item. They carry R, but the long standing tradition is to not buy/sell NC-17 ANYTHING.

Ghen @ Aug 14th 2008 8:32PM

your mom is a violent video game.

emirabal @ Aug 14th 2008 9:00PM

You hit the nail on the head with this one. You brought in the perfect example of "catcher in the rye", because i always think the same thing, this book is still sold and nobody has brought charges against these people.

I have this argument with people who claim that i am more violent because of video games, wut, come on, im violent because im violent and have a vivid imagination, not because i play video games.

Also the issue about the person has mental issues is a whole different problem, thats where its not even about looking at the video games its the person brain that has the problem.

Stop looking for something to blame and blame the person.

theturtle363 @ Aug 14th 2008 9:27PM

thank god i dont live in Thailand

Jeff Rebbeck @ Aug 14th 2008 10:36PM

Mark, thank you for this thoughtful post.

As was already mentioned in one of the GamePolitics articles, I would also like to point out again that we don't yet have meaningful confirmation that this crime really occurred the way it's been described.

Danny @ Aug 15th 2008 12:47AM

I don't know where to begin. The course of action is simple, we need to educate parents better. But the actual education part is hard. Simply put a lot of parents are too stupid to have kids and probably shouldn't have.

We have a nation of kids being raised by media on our hands and it's becoming increasingly hard to say that we shouldn't regulate media seeing as how the parents are seemingly unwilling to change. But I still believe that if you beat them over the head with it maybe, just maybe you can achieve some form of victory. There should be banners across any form of video games that say M=MATURE FOR AUDIENCES 17 AND UP. We could also put disclaimers in loading screens also stating that this is a work of fiction and that these actions should never be carried out in real life. That would absolve some of the scapegoating.

Doug @ Aug 15th 2008 2:00AM

Danny,

Parents aren't "stupid," they are just confused by ratings that aren't applied evenly. They can't figure out which game is the hard-M and which is the soft-M. Honestly, you can't keep a 10-year old from playing some M-games. It's all that's out there besides Viva Pinata and Madden. Some M-games are actually not even really that mature, like Halo 3. So parents go with it. It's when these provactive games like GTA4 earn an M-rating, it takes a mature theme into a hard-adult world... that's the problem, and the ESRB is screwing up the process by blending these two kinds of M. Just don't label people as stupid.

Bass Masterson @ Aug 15th 2008 4:51AM

Precisely as Doug says: stop blaming these imaginary 'stupid parents' and realize that the game ratings system really doesn't work. That doesn't mean there should be government regulations, or that games shouldn't be allowed to push boundaries: it means that we should have a rating system that works. Not only for the logical reason of DUH, but because it gives us that coveted item: Plausible Deniability.

There is no argument that media influences behavior. There's a reason ad careers pay millions, there's a reason companies invest billions in ads. Your behavior can be modified by the media you consume. Games are media. Thus, it is certainly reasonable to state that games do influence people to do things, both bad and good.

In any case, they should fry that fucking guy. The general inability of most people to actually think about their position on a subject has partially numbed me to irrationality, but I cannot fathom the people who are against capital punishment.

Phinehas @ Aug 15th 2008 1:15PM

I'd give you a +10 if I could, for your second paragraph alone.

I'd don't think I'd have said "Plausible Deniability," but I suppose that goes a bit toward the PR nightmare that the industry currently faces. If we could just stop writing and creating so much that reinforces the "immature" and "irresponsible" labels that are plastered all over our reputation, that might be a start. So, maybe "Plausible Maturity" or "Plausible Responsibility" should be our coveted item.

Disgustor @ Aug 15th 2008 5:42AM

You're right, the holistic approach is being unjustly applied to videogames singularly. It's a testimony to the conservatism surrounding new media, in a time where the "old media" is throwing a plethora of toys from its proverbial pushchair, seemingly refusing to give up. The Murdoch publications serve as a great example. Every staple of ol' Rupert's portfolio – from Fox News to Sky to The Times – is bursting with new and innovative ways of jealously blaming its baby brother for everything in the hope that it will garner the hatred of those who previously cooed over it.

Historically any new form of media attracts a huge amount of scrutiny when it rises to prominence, and "dangerous" movements in the way of art, literature, comic books and television have all proven totally benign anyway. I'm not saying it's wrong to be cautious of an emerging medium, but the phrase "those who forget the past are condemned to repeat it" comes to mind. Sometimes in the process of scrutiny we are too quick to reach tenuous conclusions in support of an ingrained traditionalism; it's part of what makes us human, I suppose, but that doesn't necessarily make it the correct approach. It's easy to find some obscure causal factor or other if you look hard enough, but the evidence is usually either a complete fabrication used opportunistically as an outlet for advocacy (read: Jack Thompson) or an iffy testimony coaxed out by somebody exploiting said fabrication (read: Jack Thompson). The evidence is way too inconsistent – and the cases too frivolous – to ever amount to anything beyond the same sporadic attention the other mediums received in their prime.

Haggard @ Aug 15th 2008 6:02AM

A well written article. I disagree with some of the other posters, in that I don't view games as dangerous, and therefore don't see the need for a tighter content rating system.

John @ Aug 15th 2008 6:40AM

Let's Punish criminals.

end of story.

People are not criminals until they act upon the murderous rages that the whiners are claiming games instill in them.

We are not the Catholic Church, evil in thought does not mean evil in deed.

This is the same BS as a hate crime: killing a person is against teh law. Why is there a different punishment for killing someone different than you? is that person's life worth more than the victim's who was killed by a member of thier own group?

Why do we as a society always seem to want to put the blame for criminal actions anywhere but on the criminal? We all want to pretend we are so "advanced" and believe in freedom of choice, but what about the consequence of poor choices?

The same argument can be made for gun control: there are millions of people who own and use them responsibly, why punish them for the few that are going to make the choice to break the law?

Here is a radical thought: Let's give people freedom, and unshackle them from the oppressive oversight of government meddling, and then allow them to make the choices of how to live their own life, but rather than find excuses, and worry about hurting their feelings, when they make the wrong choice, let's appropriately punish them in a way that it equally difficult on htem that the choice they made was on others.

hexhunter @ Aug 15th 2008 8:23AM

I wonder if the approach that rating boards take is not scientific enough, why else would there be such confusion as to when you should legally be free to buy and view content which is usually censored to children.

Is it 16, 17 or 18 when I am free not to have my life interfered in by the government?

Ultimately any claim that games cause crime is not a good reason to ban games, if the media causes crime the police have to improve their efforts to stifle the crime, the media don't get threatened with censorship...

CSI allows hundreds of criminals to get away, it's not like anyone wants it to be taken off air.

Reggie @ Aug 15th 2008 10:27AM

if they can hold rockstar responsible for a crime inspired by their game don't stop there how about a class action suit against the Catholic Church to pay damages to the families of all the people killed or sold into slavery because of people inspired by biblical texts
how we press charges against the Nation of Islam for any terrorist act made in the name of Allah.
lets face facts most serial killers and terrorist are inspired by religeous texts if we start banning thing based on the crimes they inspire the religeon should go first

William @ Aug 15th 2008 10:56AM

God I feel bad... One thing kept going through my mind here and that is...

OBJECTION!

Phinehas @ Aug 15th 2008 1:22PM

"Doesn't the idea of free speech in and of itself demand some personal responsibility from those who are in their right mind?"

Brilliant point. Of course, it should probably be a two-way street. It seems that free speech should demand some personal responsibility from the speaker as well as the listener.

So, if the listener's responsibility is to not act out the bad stuff they've seen (and it certainly is), that just leaves us with the speaker's responsibility. Hmmm...I wonder what that would look like?