Tortured Definitions – Guest Blog by Karel Minor

Whether you loved or hated Bill Clinton, it’s unlikely you didn’t cringe when he tried to deny he had made a false statement when he said he had not “had sex in any way, shape or form” with Monica Lewinski by arguing that it depended on “what the definition of ‘is’ is.”  Even those how love the subtlety of the English language know that when you have to walk down that path, your trying pretty hard to lie without actually lying.

It is somehow appropriate then that Buck’s County DA David Heckler opted for the tortured definition approach when he dismissed cruelty charges filed by a lawfully sworn Humane Society Police Officer against the Philadelphia Gun Club.  He even one upped Clinton. Heckler, to paraphrase, chose to say, “It all depends on what the definition of ill-treatment was in 1891.”  One would think that he might simply do what you or I might do and simply look the word up to see that ill-treatment means to treat cruelly or improperly or to abuse.

Because that is the clear meaning of Pennsylvania’s cruelty law under which the Philadelphia Gun Club was charged.  It’s a simple word, a simple law, and a simple concept.  It is a crime to ill-treat an animal without cause.  The law even recognizes that there are many circumstances in which society has decided that ill-treatment is not a crime.  In normal agriculture and food production.  In pest control.  In self-defense. In lawful hunting practice.  Our culture recognizes that some actions are ill-treatment and we have chosen to exempt them from the law.

Bucks County DA, David Heckler

Heckler did not choose to exempt the Gun Club from prosecution based on any of these lawful exemptions.  In fact, he couldn’t since none apply.  The most likely allowable exemption would be a Game Code exemption and the Pennsylvania Game Commission has recently gone very much on record with members of the public to say that there is no Game Law protection for pigeon shoots since they are neither fair chase hunting, nor regulated hunting grounds game release activities, and the Game Code explicitly says noanimals but those listed for hunting may be hunted.  Pigeons are not listed.

No, he had no choice but to try to argue that stuffing one pigeon (or hundreds, one at a time) in a box with a mechanical device which, when a string is pulled, flings the bird (or hundreds, one at a time) into the air in the line of sight of a shotgun welding shooter so it can be shot is not “ill-treatment”.  If it’s lucky, it is killed outright.  Most are not and either fall to the ground to, if they are lucky, have their necks rung (sometimes by children, charmingly referred to as “wringers”), and if they are not, dumped in a pile or barrel to suffocate.  Others fly away to slowly die of their wounds or drown in the nearby Delaware River.

So the simple question is similar to the one fielded by Clinton: How is this action not in some, or every, way, shape and form, ill-treatment?  The described activity is very obviously cruel treatment, improper treatment, and abuse.  It is by definition a violation of the letter of the law and certainly warrants allowing a judge to hear the State sworn Humane Society Police Officer’s case.  If Heckler can’t point to one of the clear and specific exemptions to the cruelty law, how can he dismiss the charges?  He can do it by arguing the definition of what “is” is and going out and finding a different, tortured definition of what “ill-treat” means.  And he had to really crank back the dial on his Way Back Machine because the “legal” definition he found was from a case in 1891.

In this case a man was first found guilty by a jury of his peers of cruelty for a pigeon shoot in Bucks County.  On appeal, the appeals court found that he was not guilty of cruelty and ill-treatment, he was merely guilty of being a poor shot, and that was no crime.  I couldn’t make this up.  There is also the slight matter of the appeal court referring to the then existing Game Law which is no longer in effect, making the verdict built on a foundation which no longer exists, castrating DA Heckler’s attempt at comparison.

Those old timey folks were really quite clever back then and they were deft at finding all kinds of ways to explain away the obvious and to deny the clear meaning of a word.  Heckler is following in a long line of such tortured definitions and bizarre justifications for violence and cruelty.  One wonders, though, why he chooses to hang his hat on this approach since the courts very notoriously employed this reaching back in time and mangling of meaning to defend many actions which would seem to be pretty straight forward crimes.

I’ll offer one parallel for Mr. Heckler.  Rape.  We all know what rape is.  A quick check of the current Meriam-Webster definition confirms that it forced sexual intercourse.  The 1904 Webster’s definition is slightly daintier, avoids the word intercourse and specifies that it is the rape of a woman or girl.  That is about as clear cut as can be.  If you force intercourse on a person against his or her (I guess in 1904 just her) will, you are guilty of rape.  Did you know that until very recently it was considered impossible to rape your wife?  Seriously, it was not until 1975 that South Dakota became the first U.S. state to make raping your wife specifically illegal and it wasn’t until 1993 that North Carolina became the final state to do so (way to bring up the rear, N.C.).

You might wonder why there would need to be an explicit law to outlaw raping your wife.  If any man forces his wife to have sex against her will, isn’t that the very definition of rape?  The only way to find otherwise would be to find an alternative definition.  Not one found in any dictionary or in our common lexicon, but one based on a legal opinion.  And a pretty tortured one at that.  Sound familiar?  It should, because until 1933- and still regularly thereafter- U.S. prosecutors and judges used a contorted legal opinions stemming from a 1736 legal treatise by English Judge Sir Matthew Hale, to justify either not prosecuting or acquitting husbands of the charge of raping their wives.  The treatise cited said that there couldn’t be rape in marriage because wives had already “submitted” to their husbands.  You know, they weren’t guilty of ill-treatment, just of being a bad shot.

It was not until 1933 that the first husband was found guilty of rape in the United States and it was not until 1993 that the last State finally stated the obvious and made it explicit law that rape is rape.  Period.  Or sort of.  It’s still a lesser crime to rape your wife in some states than to rape a stranger.  There too lies a parallel because in Pennsylvania it is a lesser crime to torture a pigeon as opposed to a pet dog.  But it is still a crime.  And it should be remembered when people ask why we need an explicitly stated law to ban pigeon shoots if they are already illegal that we needed similar seemingly obvious laws to say that a man can’t rape his wife and that a black man had the same right to vote as a white man.  Or that women have the right to vote at all.  Sometimes the obvious just needs to be stated for the benefit of the definitionally challenged, like DA Heckler.

DA Heckler walked the same path of presidents and prosecutors before him to torture a definition to obtain the outcome he desired.  It’s the same method which has allowed us to legally define “person” or “citizen” to exclude blacks or “voter” to exclude women or “torture” to exclude waterboarding, even when no dictionary cold be found to do so.  It is a well-worn path.   He had to do it because the clear meaning of the words in the law being prosecuted wouldn’t support his position.  So he had to fall back on some long ago judge’s twisting into an unnatural form (one definition of tortured) of the word “ill-treatment”.

There are a couple more interesting similarities between this week’s aborted prosecution and the one from 1891.  Both involved pigeons, both were in Bucks County, and both involved the Philadelphia Gun Club.  In 1891 the defendant, A. Nelson Lewis, was represented by Hugh B. Eastburn.  Hugh B. Eastburn is the great grandfather of D. Rodman Eastburn of , wait for it, Eastburn and Gray, the law firm representing the 2012 defendant, the Philadelphia Gun Club.  It’s also interesting to note that this law firm is reported to have associates who have been involved with the pigeon shoots held there now.  One of those associates is reported to have pled guilty to physically assaulting a shoot protestor.  That law firm’s associates are also reported to have donated half of the campaign contributions received during one campaign cycle by DA Heckler when he ran for judge in 2007.  In other words, DA Heckler appears to have dismissed charges against the client of major political donors, a firm with associates who reportedly participate in the shoots themselves.

Maybe in our search to determine why DA Heckler needed to go back 121 years to an obscure and bizarre legal decision to find a definition of ill-treatment he could have used the Google to obtain, we should instead look up another definition and try it on for size.

Corrupt (adjective): dishonest

Synonyms: bent, bribable, crooked, double-dealing, on the take, tainted, unethical.

I believe another lawyer once said, “If the glove don’t fit, you must acquit”.  Some definitions just fit better than others.  And some fit like a glove.