Blanket "One Punch" Laws Are An Assault On Liberty

There is an enormous difference between the misadventure of someone dying as a result of a punch in a fair fight, or a punch thrown during a heated argument between two men of comparable fighting ability and death resulting from the cowardly thuggery of a king hit.

These should be treated completely differently under the law, however it appears that Western Australia does not intend to draw such a distinction in practice. Other states may follow suit.

In 2008, Western Australia introduced s281 of its Criminal Code: Unlawful Assault Occasioning Death. It says:

(1)   If a person unlawfully assaults another who dies as a direct or indirect result of the assault, the person is guilty of a crime and is liable to imprisonment for 10 years.

(2)   A person is criminally responsible under subsection (1) even if the person does not intend or foresee the death of the other person and even if the death was not reasonably foreseeable.

It was brought in as a response to acquittals in manslaughter trials where the defendant had punched someone who died as a result.

The problem with this law is the vagueness of the definition of “unlawfully assaults”, which allows it to be used in a blanket manner. There is no description of what constitutes, or even what is intended to constitute self defence. There is no discussion of mitigating factors in such an assault, for example, provocation.

Police are likely to apply such a law to lay charges in any matter where someone has died following a physical altercation, with the philosophy of letting the court sort it out. This will encompass a range of circumstances, from legitimate self defence, which should result in no charge, to outright thuggery, which should result in a more serious manslaughter charge. I reason that police will probably use a s281 style charge in preference to manslaughter in the latter cases due to the relative ease of securing a conviction.

Application of a s281 charge at either end of the spectrum will likely result in an injustice, either to the defendant or the victim.

Such a law can be useful and justly applied, but only in concert with clear guidance on self defence and mitigating factors such as provocation, with additional guidelines as to when it should be upgraded to manslaughter.

Previously, in all Australian jurisdictions, the only charges available in such cases were murder and manslaughter, the latter being defined as any punishable homicide which is not deemed to be murder, apart from some specific offences such as culpable driving. The exact wording of the allowable defence of accidentality varies, however it is generally along the lines of s18 of the NSW Crimes Act, in which killing by misfortune is not an offence at all.

Thus, when police wanted to press charges, they needed to argue that there was a material degree of recklessness as to the possibility of the assault causing death and hence lay a manslaughter charge (recklessness being usually treated as comparable to intent, rather than negligence); essentially that a normal person could have reasonably been expected to foresee death as a materially possible consequence of their actions.

In cases where a person has died as a result of a punch during a fight, as in the case of Mark Fitzgerald, juries have often been disagreeing with the prosecution, finding that the death was due to misadventure because the defendant could not reasonably have been expected to foresee a punch causing the death of another man of comparable age and build.

In this particular case, it was a travesty that Mark Fitzgerald was even charged, much like the case of Tobias Simmons in Sydney earlier this year. Both were brawls in which there was clearly a strong element of self defence.

Mark Fitzgerald’s comments during the police interview show the importance of exercising your right to silence. He should have stopped at:

“I got rushed, a dude just ran at me, I was just trying to defend myself.”

If some arsehole who is attacking you dies because you punch them in self defence, fuck them. They made their own bad luck. Why should you suffer as a result? It must have cost Mark Fitzgerald a small fortune to defend this unfair manslaughter charge, not to mention the unreasonable stress he has been put through. He should be awarded costs.

In Western Australia, Mark Fitzgerald would almost certainly have been charged under s281. He’d probably have been found guilty too, because of subsection (2), which is the real problem.

Suppose the police charged everyone involved in the brawl with affray, then argued they all committed unlawful assaults as a result, so that subsections (1) and (2) both apply. If a jury agreed, he’d be in jail now … for defending himself.

That’s the problem with this law. Its premises are false and thus its application will often be unjust. There is no clarity as to what constitutes self defence, including the right to stand your ground and no clarity around provocation. For example, when and how would a reasonable person react physically to a continued stream of threats and insults?

To construct a good law, many different cases need to be analysed. What does the community believe were reasonable reactions? What is a just outcome in each? Does the proposed law achieve this?

A law is not just if police are likely to use it in a blanket manner and “let the courts sort it out”. State police are on the whole as lazy and bureaucratic as any other public service department. It is highly likely that given s281 or similar, any matter where a punch is thrown and someone dies will lead to a s281 charge, regardless of any circumstances such as self defence. The police won’t care: they will just lay the charge and leave it up to the court. The DPP will almost certainly pursue it because they are only interested in convictions, not justice.

Even king hit cases may end up with s281 charges, rather than manslaughter, since these will be much easier to prove. So, we’ll end up with injustice at both ends of the spectrum of circumstances.

A law is also unjust if the police and / or the DPP can finesse its application to achieve an outcome which a majority or even a large proportion of the community sees as unjust.

That is the case with the current version of s281. It is not justice that someone caught up in a brawl is jailed because they punch an attacker who subsequently dies.

Let’s look at some other cases.

Derek Loo was recently sentenced to 2½ years jail under WA’s s281 for the one punch death of his sister’s boyfriend during a drunken altercation. The article doesn’t say if there was pushing and shoving beforehand. Essentially, they were all drunk after attending a funeral. He had an argument with his sister. Her boyfriend stepped in, began arguing with Derek Loo, who punched him once, resulting in his death.

Now, this is worse than Mark Fitzgerald’s self defence punch, but there are clearly mitigating circumstances. I suspect Derek Loo is guilty of not being able to afford a good lawyer as much as anything else.

Look at his picture. He’s not a hulking brute. Two men of essentially the same age were having a heated argument. There may have been some pushing and shoving; there was certainly aggressive behaviour on both sides. Would Derek Loo have thought it possible Mark Fryer would hit him? Maybe. That should have been his defence. Additionally, there was clearly at least some element of provocation.

My point is that it’s not abnormal for men in a heated argument, in which provocative things are said, to throw a few punches. To have a law which automatically treats any punch thrown as an unlawful assault and thus automatically invokes s281 if someone accidentally dies will lead to unjust outcomes. Derek Loo should not spend 2½ years in jail for this.

Here is another case from Queensland, which does not have something like s281, so Daniel Dean was charged with manslaughter after a fight. He and the deceased, Mark Urich, appear equally responsible for the argument escalating into a fist fight: they both went outside to the carpark.

So two blokes agreed to step outside to “settle” an argument. Other than public nuisance, what’s wrong with this? There was no affray, since no bystanders could reasonably have feared for their safety. Some people may not agree with it, but why should they be able to impose their namby-pamby views on others? The worst that should happen to two people who by mutual agreement, get into a fair fist fight in a public place is a public nuisance or similar charge.

The problem for Daniel Dean was that when he punched Mark Urich, the latter fell over, hit his head and died. But that’s as much Mark Urich’s fault as Daniel Dean’s. I can’t see how this death should be treated as anything but misfortune.

However, with typical bastardry, the shifty police decided to incorporate the One Punch Can Kill campaign into their questioning of Daniel Dean. They secured an admission from Dean that he was aware of the campaign and its meaning, yet despite this knowledge, still engaged in a fist fight. The admission resulted in a manslaughter conviction and 7 year sentence, which was overturned on appeal.

The lesson from this case is to state clearly that the deceased was the aggressor, that you were defending yourself, then exercise your right to silence.

Actually, by pursuing this line of questioning, the police have unwittingly provided a defence. “Yes, I am aware of the campaign. He was aggressive and shaped up to me. As a result, I quite reasonably thought he was going to punch me. Since I knew a single punch could kill me, I was in fear not just for my safety, but my life. So I punched him in self defence before he had the chance to punch and possibly kill me. I shouldn’t have had to walk away. That would have been dangerous. I thought that if I walked away, he’d have pursued and struck me anyway, so I thought it better to face up to him and sort it out then and there.”

People should have the legal right to stand their ground in the face of aggression. They should not have to first retreat in order to establish self defence. In fact, an initial retreat often renders a situation more dangerous. If you are in a heated argument and form the belief that there is a material possibility the other person is about to punch you, it is safest for you to hit them first. Additionally, attacking the head of your opponent is most likely to provoke a stronger defensive reaction, thus ending the conflict as quickly as possible, which should be your goal. If you’re in a fight, the longer it goes on, the more chance your opponent will get in a punch which could seriously injure, or even kill you.

Thus, if two men of comparable age and size are aggressively arguing and one squares up, the other attacking their head is the best self defence option.

I don’t agree that a punch in this situation leads to death, even if it is a knockout punch and the person falls over and hits their head. That conclusion is just legal and political sophistry. The deceased has significantly contributed to and in my view, ultimately caused their own death by being aggressive and shaping up, thus giving the other person reason to believe they were going to be attacked. The punch didn’t kill them: falling over and hitting their head did. That happened because they didn’t defend themselves properly, despite behaving aggressively and provoking the other person to fear attack.

If you’re aggressive and shape up to someone, you’re risking death, so if that concerns you, either make sure you can fight or else back down and slink off like the pussy you are.

The Skye Barkwith case is a grey area. Jake Becker (21) was acquitted of manslaughter after punching the 17 year old Barkwith during an argument over a girl outside a pub. As so often happens in theses cases, Barkwith fell and hit his head on the pavement after being punched in the face by Becker.

It turned out that Becker has a history of drunken brawls, with two previous assault convictions, which of course cannot be brought up during the trial. In this matter, he was also convicted of attempting to pervert the course of justice, suggesting he believed a self defence argument may struggle.

This is a good case study because it informs debate over firstly what constitutes reasonable force and secondly, the equation of culpability with the degree to which each protagonist was the aggressor.

It’s not possible to fully judge each case without access to the court transcripts, which is precisely why judges and juries should have wide discretion in such matters, not be constrained by blanket laws.

I drew the inference that Becker may have been significantly more the aggressor, perhaps pursuing the girl and Barkwith stood up to him. If that’s true, Becker is older, probably stronger and almost certainly a more experienced fighter. A court may have formed the view that although Barkwith was being aggressive to some degree, Becker wasn’t in such immediate danger that he needed to throw a punch to the face. He could have punched Barkwith in the stomach or ribs and that may have been sufficient to prevail. Consequently, a s281 one punch death charge may have been appropriate here, due to the apparent recklessness of Becker’s punch. His prior assault convictions could then be taken into account during sentencing, offset by the extra cost of his defence due to the stupid bloody editor of The West Australian newspaper causing the first trial to be aborted.

It’s all very well for the parents to cry “Injustice!” in this case, however, what was your 17 year old son doing drunkenly squaring off against an older man, outside a pub in a mining town after midnight? He should probably just have been punched in the stomach and ribs, but let’s not pretend he shouldn’t have gotten out of there as fast as possible.

“Grieving mothers” should not be allowed to influence rules governing interactions between grown men. If Skye Barkwith wanted to drink underage in a pub in a mining town, he should have done what we did when we went to pubs underage: kept our fucking heads down.

These examples are completely different circumstances from king hits, where someone is punched without warning and doesn’t see it coming, or continuing to punch someone after they are rendered defenceless. These are low, cowardly acts. “Cunt acts”, as we used to say.

A recent example was the death of 18 year old Thomas Kelly, killed by a blindside king hit in Kings Cross. The assailant, Kieran Loveridge, is an absolute scumbag: no fixed address, estranged from his parents, 18 years old and already covered in tattoos. Just a turd with a massive chip on his shoulder who had come into the Cross from Blacktown / Mt Druitt for a “night out” ie. to cause trouble. He had previously hit three other random strangers.

There already exist adequate laws to deal with such acts: murder and manslaughter. In the Brett Meredith, Jesse French and Thomas Kelly examples above, there is clear recklessness as to the possibility of causing at least grievous bodily harm, if not worse. That is covered by manslaughter. There is no need for a s281 style law to deal with these cases, since they deserve the more serious manslaughter charge.

I have to admit to a chuckle of schadenfreude when one of Kieran Loveridge’s mates punched out the Channel 9 cameraman outside Burwood Court, however.

The Real Heroes Walk Away campaign is nanny stater ideology. Real heroes do not walk away: they don’t pick fights, but they do defend themselves and others.

I don’t mean that a person should be able to punch another over a single insult or brief argument. If so, this would lead to people getting punched for nothing, then the attacker fabricating some insult as a defence.

However, why should a person not have the right to stand their ground and deal effectively with persistent insults or harassment to themselves or others? Sometimes the most effective way to deal with such a problem is some level of violence. If that were not the case, police and other security staff would not be allowed to use physical force against troublemakers.

The real question is: In what circumstances and to what degree is violence justified?

Why should a person not be allowed to react to a continued stream of taunts and insults with a punch?

If “they’re only words”, we can drop this bullying campaign.

“Oh, no, but words can hurt.”

Yes, you’re right, they can. Which is why persistent taunts and insults can provoke a person to violence in order to stop them. A person should be able to stand their ground and defend themself against not just violence, but hurtful insults.

If someone if persistently insulting me, should I not be able to punch them? What if I punch them in the stomach or the ribs instead of the head? What if I tell them to fuck off or they’ll get smacked and they keep on with it? I shouldn’t have to walk away and have my planned activities curtailed due to the behaviour of a complete turkey.

Now suppose the person is roughly my age and size (or younger and bigger) and squares up to me when I tell them to fuck off. It would be dangerous and possibly life threatening to assume they don’t intend to hit me. Thus, I should assume they are likely to throw a punch and get in first. That’s the best defence. If they die as a result, they have brought it on themselves.

People shouldn’t be allowed to punch others who are physically significantly inferior, for example children, women or the elderly. A professional boxer should not be allowed to punch some twat in the face for mouthing off. All of these situations can be dealt with using far less physical force than a punch, which would be genuinely dangerous.

An open handed slap to silence a mouthy twat is far more effective because it is humiliating: it says that they are not even enough of a man to be worth fighting.

Suppose a fifty or sixty year old man starts arguing aggressively with a significantly stronger man half their age, then refuses to back down when told to. They are milking the power difference: you can’t hit me because I’m an old man and I’ll call the police, so I’ll stand here and keep mouthing off as long as I like. It would be wrong for the younger man to punch them hard, because hitting an old man is genuinely dangerous. However, it should be perfectly legal to use just enough physical force to get the old fool to fuck off. A firm flick on the nose with a finger, or spin him around and give him a kick in the arse should be legal force in my opinion.

Here’s a case where an absolute idiot punched a 66 year old man after an argument over the old man watering his garden during water restrictions. Despite it being none of his business, Todd Munter, 36, decided to have words with Ken Proctor, 66, after he saw him watering his front lawn as he walked past. During the argument, Proctor sprayed Munter with the hose, prompting Munter to begin punching and kicking him. Ken Proctor died of a heart attack and Munter was charged with murder.

The murder charge is ridiculous, since it is not reasonable to foresee a heart attack. Thus, I’m not even sure manslaughter is appropriate here. However, it’s completely inappropriate for a 36 year old to be fighting an old man. He could have just grabbed the hose and sprayed Ken Proctor back, then come back and egged his house if he was still riled up.

Todd Munter is obviously a complete idiot who needs to be removed from the community. A s281 type charge might be just what was needed here, since any competent prosecutor should be able to secure a conviction.

So, several real cases, all deaths ensuing from a fight. They span the spectrum from genuine misadventure during self defence to indefensible thuggery.

In summary, a s281 style law can work by securing convictions for deaths arising from domestic violence or other thuggery, where a manslaughter charge may fail. However, without clear prescriptions on provocation and the right to self defence, it has the potential for blanket use by police. That is then detrimental to what should be a fundamental liberty of citizens in a free society: the right to stand your ground and defend yourself against violence, harassment, insults and dickheads in general.

Waiter, The Pages Of This Menu Are Stuck Together

How do some restaurants have themselves on to such a degree without any sense of embarrassment?

I went for lunch yesterday at a city bar / pub called The Morrison, on the corner of Grosvenor and George Sts. It used to be called The Brooklyn, but it’s been done up and seems to be under new management. Although the layout is basically unchanged, there is a new and much pricier menu.

Other than the portions being on the small side for the price and venue, no complaints regarding the food. The meals were tasty, with quality ingredients and balanced flavours. There’s a good wine list. Apart from one incidence of not listening, the service was fine, which it would bloody well want to be when I’m paying $26 for a smallish bowl of crab linguine in a glorified pub.

The highlight of the meal however, was our amusement at the pretentiousness of the menu. There was the more obvious and standard onanism of $20 salads, with a “hen’s egg”. Thankyou for telling me it’s an ordinary egg: I was expecting one from a peacock or a cassowary for $22.

But for the piece de resistance, look about halfway down the left hand side and you’ll see

FLIGHT OF HAMS $28    a study of three cured hams

What sort of tosser would write something like this on a menu and expect to be taken seriously?

A study, no less? Pigs flying. If the hams were pressed, I could understand:

A pane of glass would be brought out, then three waiters would in turn press their bums up against it. The diners would stroke their beards with thumb and index finger while contemplating these pressed hams and saying: ”How true … how true”, then fork over $28 each as the price of this morsel of enlightenment.

Get over yourselves … you don’t even have Resch’s on tap.

A different genre of culinary onanism is having a wanky name.

There's Darlighurst's Sel Et Poivre, which markets itself as "The original French bistro of Sydney since 1998!", exclamation mark included.

Of course, there were no French restaurants in Sydney prior to 1998. I seem to remember eating only a few hundred yards away at Mere Catherine more than a decade before Sel Et Poivre opened, but perhaps the owners are secretly Belgian.

If you're going to have a French restaurant, try a little harder than translating "Salt and Pepper" into French in a lame attempt to make it sound chic. How about "Les Deux Conards"?

The greatest pretence is to transparently pretend its absence. That distinction goes to Food & Plonk on Sydney's upper North Shore, which I believe has now closed.

The name had always turned me off, but a friend who had dined there several times suggested we go. The food was good enough and they had a quality wine selection, although both were overpriced for the physical environment of the restaurant; hardly a massive rent to support.

But the name ... It sounds like Bowral foodie wankers:

"None of that inner city bullshit here. We're just FOOD and PLONK. That's what we're all about: food and wine. No poncy fluff with us genuine, down to Earth foodies!"

If only it had been true ... they would have called it something else.

I can imagine the wife talking to some of her North Shore / Bowral 4W Driving friends: "Oh yes, Bruce likes to think he's a bit of a rough diamond with his use of the vernacular."

Addendum: The head chef's name was actually Chris and he was from England, but that's beside the point.

Obama Will Win Today

The President of the United States of America is determined by a majority of votes in the Electoral College. The College has 538 electors: one for each senator (100), congressman (435) and three for the District of Columbia (Washington), which is not a state. Thus, to guarantee the presidency, a candidate needs 270 Electoral College votes, although it is possible to win with less if more than two candidates receive votes.

Candidates other than the Republican and Democratic party nominees receiving votes in 2012's Electoral College is extremely unlikely. In fact, it last happened in the 1972 election when the Libertarian Party’s John Hospers received one vote. However, this was due to a Virginia elector pledged to Nixon reneging and voting for Hospers.

Prior to the 1970’s, strong third candidates were not uncommon. In 1968, Alabama segregationist George Wallace received 46 Electoral College votes after winning Arkansas, Louisiana, Mississippi, Alabama and Georgia. In 1960, Virginian Harry F. Byrd received 15 College votes when electors from Alabama and Mississippi refused to vote for John F. Kennedy.

The prospect of such events occurring in the 2012 election are remote, so if we allocate the 538 College votes amongst Obama and Romney, whoever gets to 270 will be the president.

In the US Constitution, each state decides its own method of choosing its allocated number of electors. The original theory was that each state would allocate College delegates / electors by congressional district and senate seats, so that the president would be chosen by a parliamentary majority.

Now, 48 of the 50 states, plus Washington DC operate on a winner takes all basis: whoever wins the popular vote in that state secures all its electors. Only Maine (4) and Nebraska (5) allocate their electors on the basis of congressional districts, so could in theory split, as Nebraska did in 2008 when one delegate voted for Obama.

Many Republican supporters are still talking up Mitt Romney’s chances, but analyst Nate Silver, who uses econometric forecasting models, called it for Obama weeks ago. He says that most voters have already made up their minds and the economic variables with predictive power have all trended toward Obama in the past couple of months.

Since only Maine and Nebraska don’t operate on a winner take all system, we can start by listing all the solidly pro Democrat and pro Republican states and add up their electors.

The west coast: California, Oregon, Washington, plus Hawaii are all solidly Democrat. That’s 78 votes. The north east: Maine, New Hampshire, Vermont, Massachusetts, New York, New Jersey, Rhode Island, Connecticut, Delaware, Maryland, Washington DC and Pennsylvania will all be won by Obama. That’s another 112 votes. The Great Lakes states: Illinois, Michigan, Minnesota and Wisconsin will also be Obama wins, giving him another 56 votes. That’s 246 so far.

There is talk that Romney might have a chance in Pennsylvania, but I don’t believe it and neither does Nate Silver. People were also talking up Romney’s chances in Maine. The state is full of rich, white people, so theoretically it should be Republican, but Maine has been fairly solidly liberal Democrat since 1992.

Which states will Romney definitely win? All the conservative ones in the middle and the south: Arizona, Utah, Idaho, Montana, Wyoming, North & South Dakota, Nebraska (I’m allocating all 5 electors to Romney), Kansas, Oklahoma, Texas, Missouri, Arkansas, Louisiana, Mississippi, Alabama, Georgia, North and South Carolina, Tennessee, Kentucky, West Virginia and Indiana, plus Alaska. Lots of states, but most of them are small. Only 206 votes in total.

So, there are 86 electors in 7 states which might go either way: Nevada (6), Colorado (9), New Mexico (5), Iowa (6), Ohio (18), Virginia (13) and Florida (29).

If Obama wins Florida, he’s home, but I don’t think he will. If he does, he’ll probably win all 7 of these states, except maybe Virginia. Some pundits are saying Obama is a good chance to retain Virginia, because of the spread of Washington DC west across the Potomac into places like Arlington and Fairfax, but I’m not so sure it’s enough to counter the anti Obama rural white voters in the south and west of the state.

If Obama wins Ohio, he only needs Nevada or Iowa, or New Mexico and one other. If he does win Ohio, the mood in America will probably be sufficient to see this happen.

There almost certainly won’t be a situation like in 2000 when the vanity of Ralph Nader pulled votes from Al Gore and delivered Florida and hence the presidency to George W Bush. The Greens running wouldn’t have caused a problem in a country like Australia, where we have optional preferential voting. But in the US presidential elections, it’s first past the post. Thus Nader and the Greens drew enough left wing voters away from Gore to allow Bush to sneak in. With typically delusional Green vanity, Nader didn't seem to accept that he'd helped his Republican enemy and maybe not running in just a few states might have helped the cause.

So what does Fingo think the result will be?

I believe Romney is a good chance to win Florida, Virginia, Colorado and an outside chance in Iowa. That would get him to 263 and Obama 275. That’s the best I reckon he can do.

On top of Romney’s crazy plan to cut income tax for the top tax bracket and swinging voters’ quite reasonable suspicion of the religious right, almost everything has been going right for Obama in the last few weeks: mostly favourable economic data, a better debate performance and Hurricane Sandy.

Sandy was positive for Obama: he looked presidential in the way he dealt with the crisis (cf George Bush and Hurricane Katrina). Additionally, most people don’t like change during a crisis. There will be some swing voters who respond emotionally by feeling that the country should rally around its leader to help those affected and repair the damage.

There’s also the problem for Romney that he’s perceived as a bit of a chameleon. It’s like he’s using business management strategies to first solve the problem of getting elected, then he’ll try to solve the problems of the economy. One gets the sense that he sees the two issues as more distinct than voters see them ie. your plan to fix the economy should be what gets you elected. Other than Mormonism and free enterprise, it’s a little hard to discern what Romney really stands for.

Fingo’s tip: most likely is 281 - 257 Obama, possibly as close as 275 - 263 and possibly as wide as 303 - 235.

One of the stupidest elements of this whole election is that whoever wins will likely face either a hostile House of Representatives or a hostile Senate.

All 435 members of the House of Representatives are up for re-election today and it looks very much like the Republicans will maintain a working majority, of probably at least 30 seats. This will maintain the hostile House which Obama has had to face since the mid term elections of 2010.

What's really stupid is that only 33 of 100 senators are up for re-election. The remaining 67 represent the electoral mood 2 or 4 years ago. It appears likely the Democrats will retain a slight majority, so if Romney wins, he will probably face a hostile Senate, although Republican control of both houses is a possibility.

Control of both houses is only a realistic possibility for the Republicans, which would in some sense make it more logical to elect Romney, since he can then work with parliament (and is really a lot more centrist than he pretended to be in order to win the Republican nomination). However it is unlikely most American voters would even grasp this, let alone it enter their voting deliberations.

Who would Fingo vote for?

Since it's first past the post ie. no chance to allocate preferences, neither of them. I'd vote for Libertarian candidate Gary Johnson. A vote for liberty is never wasted!

Update:

It looks like Obama has won all 7 of the above mentioned marginal states, for a 332 - 206 victory. Winning Florida was a sign that the mood of undecided voters had swung sufficiently behind Obama that he would win all of the other 6 marginal states as well. Only Ohio and Virginia were even close. He won Colorado by around 4%.

I thought Romney would scrape a win in Florida. Nate Silver correctly called all 50 states, demonstrating the power of "gay" econometric analysis over Dean Chambers' ideological boofheadery. Silver had Obama a 50.3% chance of winning Florida, so even he thought it was a coin toss.

Looking at the district polling numbers for Virginia, you can see the largest districts are what are now effectively the western suburbs of Washington DC. This is where Obama won Virginia. As Washington grows, a lot of its expansion will be in this area, so Virginia should become more and more of a Democrat state.

Finally, the Democrats have picked up two Senate seats, increasing their majority to 53 - 47. One of them is Indiana, where the ridiculous Richard Mourdock was turfed out, despite the state going to Romney after supporting Obama in 2008.

However, the Republicans have retained a solid majority in the House. Although this makes Obama's legislative program more difficult, it will help rein in spending in return for giving up tax cuts. Be prepared for an inability to reach a policy compromise before the US goes over the fiscal cliff. I wouldn't be holding many long positions in equities for a while. Cash is a pretty good place to be right now.

And Gary Johnson? He was the highest placed minor candidate, with about 1% of the popular vote. Keep fighting the good fight, Gary!

When Science And The Law Completely Fail To Understand Each Other

Contrary to many press reports, the Italian scientists were not prosecuted for failing to predict the L’Aquila earthquake. Effectively, they were charged with manslaughter by negligent or reckless omission, for failing to adequately warn people of the risk of an earthquake and for failing to correct the assertion by bureaucrat Bernardo De Bernardinis, deputy technical head of the Civil Protection Agency that there was no danger. Now a court has found them all guilty and sentenced them each to six years in jail.

Fucking insane? Science on trial yet again in the country which condemned Galileo as a heretic? What could we expect from the justice system of a country hardly synonymous with honesty and competence?

It’s not that simple.

Firstly, this is not a case of a bunch of ignorant lawyers and politicians putting science on trial. The citizens of L’Aquila brought the complaint. Under the Italian constitution, prosecutors are bound to act on it.

The lack of a demonstrably direct connection between the reckless advice and negligence in not correcting it and the subsequent deaths makes the verdict appear unsafe. Six years is very harsh considering the multiple contributory factors in the deaths. However, De Bernardinis and the scientists would clearly have some case to answer in most Western countries, even if only a civil suit (which would probably bankrupt them).

Here is a chronological summary of events surrounding the L’Aquila earthquake:

Giampaolo Giuliani, a lab technician and amateur earthquake predictor used measurements of radon gas to predict a major earthquake in the region on March 29, 2009. Groups of people went around advising residents to leave their homes and a panic ensued. The earthquake did not occur.

Giuliani is not a mere crank. He has a science background and is seriously attempting to study radon emissions as a predictor of earthquakes. The problem is that he relies too heavily on radon emissions and appears overly confident of their strength as a predictor of actual quakes, as distinct from predicting general changes in seismic activity.

Although radon gas emissions have potential in searching for minerals, oil and geothermal energy sites, as well as being possible predictors of seismic activity, the problem is that high or even changing radon levels can have multiple causes. Being a predictor of increases in seismic activity is not enough: one needs to be able to predict seismic activity above the dangerous threshold and with an epicentre sufficiently close to the surface that the tremors will damage property and pose a threat to life. Radon gas emissions are currently a poor predictor of the timing and location of actual earthquakes, as distinct from predicting an increase in low level seismic activity.

The University of Massachusetts has a good geology course with a lecture on earthquake prediction. There are many observables which have weak predictive power, but science currently just doesn’t know enough to make accurate forecasts.

The next day, March 30, a magnitude 4.0 quake was observed in the surrounding Abruzzo region. That’s classified as a minor to light quake. There are tens of thousands of this magnitude observed worldwide each year.

The Richter scale is logarithmic. It is the logarithm of the amplitude of seismic waves measured along a single dimension (by the readout on a seismograph). Thus, an increase of one point on the Richter scale represents a tenfold increase in amplitude in the direction of measurement and consequently a 10^3/2 = 31.6 fold increase in energy output. The 6.3 magnitude L’Aquila quake on April 6 therefore released around 3000 times the energy of the 4.0 tremor on March 30.

On March 31, a meeting of the Major Risks Committee was held in L’Aquila. The Committee is an expert group which advises the Italian Civil Protection Agency on the risks of natural disasters. It consists of Bernardo De Bernardinis and the six scientists charged.

The minutes of this meeting record the following comments:

"A major earthquake in the area is unlikely but cannot be ruled out." - Enzo Boschi, president of the National Institute for Geophysics and Vulcanology.

"In recent times some recent earthquakes have been preceded by minor shocks days or weeks beforehand, but on the other hand many seismic swarms did not result in a major event." - Giulio Selvaggi, director of the National Earthquake Centre.

"Because L'Aquila is in a high-risk zone it is impossible to say with certainty that there will be no large earthquake." - Claudio Eva, professor of earth physics at the University of Genoa.

"There is no reason to believe that a swarm of minor events is a sure predictor of a major shock." - Franco Barberi, a volcanologist at the University of Roma Tre.

All the participants agreed that buildings in the area should be monitored urgently, to assess their capacity to sustain a major shock.

So what happened next?

Bernardo De Bernardinis and Franco Barberi fronted a press conference later that day, where De Bernardinis stated that:

"The scientific community tells us there is no danger, because there is an ongoing discharge of energy. The situation looks favourable".

As a consequence, people did not evacuate, including some who had been considering doing so. There was insufficient effort to identify particularly vulnerable buildings. On April 6, L’Aquila was hit by a 6.3 magnitude quake, killing 308 people.

On June 3, De Bernardinis and the six scientists were indicted for manslaughter, for failing to properly assess and communicate the risks, because people relied on their advice and subsequently died in the earthquake.

De Bernardinis was certainly going to find himself in trouble after spouting the above crap. It is clearly a complete misrepresentation of the comments minuted during the Risks Committee meeting.

Unfortunately, this kind of thing happens all the time when non-scientist bureaucrats, managers or “business analysts” attempt to produce an unholy fusion of communicating scientific findings and playing politics.

Many people had been panicked by Giampaolo Giuliani’s well meaning but incorrect prediction two days earlier. There was a political dimension to the press conference, since repeated scares with no ensuing quake would have resulted not just in public anger, but the possible ignoring of evacuation warnings when scientists had more data to support such a prediction.

De Bernardinis was clearly trying to juggle these demands with the inherent uncertainty of statistical analysis and particularly, earthquake prediction. The problem is that he is obviously a complete moron who does not understand scientific principles, as is usually the case when bureaucrats are attached to or worse, given oversight of scientific departments.

Clowns like De Bernardinis being placed in positions of (sometimes direct) authority over scientific departments or committees is a serious and common problem in both the corporate and public sectors. The bullshit they use to sell themselves is typically along the lines of: “My role is to interpret and implement the science in a way that’s practical for the business” or “that people can understand”.

The implication being made is that scientists are impractical, uncommercial boffins who can’t communicate with “ordinary people”. They might be good at hard sums, but it takes a special kind of professional (highly paid of course) who is comfortable in both camps and has the business acumen to implement the science in a practical way.

This self-marketing is a con job. In reality, subtleties which can materially affect decisions and outcomes are misunderstood and ignored as the science is misinterpreted and dumbed down for “the business” or government. When results are less than expected, including the occasional disaster, blame is of course sheeted onto the technical people, as it was in the GFC.

I have encountered many of these managerial types in the corporate sector. They abound in finance and IT. In my experience, the overwhelming majority are politically adept, but technically incompetent parasites whose survival strategy consists of a few simple tricks:

§        Cast yourself as “practical” and “business like” and the technical people as uncommercial and poor communicators.

§        Make regular lists of key statistics, brief task descriptions in project specs and topic headings in technical documents. Senior management or ministerial committee meetings rarely go into detail on individual topics. Asked for an update from your department? Easy, just read out the topic headings and your brief descriptions (all provided by someone else), then follow up with some stats and some general motherhood statements. You can even put them in a Power Point presentation (because everyone at the table is only capable of linear thought). Your technical people can create all the tables and graphs.

§        Learn buzz words. You only need a high level definition because you’ll only ever say them to “business” people or government ministers / staffers. Only drop buzz words sparingly and you’ll be seen as someone who can converse with the propeller heads, but is really “one of us”.

§        Take credit for others’ work. “My department delivers these results / products because I manage it for commercial outcomes.” Any overall project plans are of course your creation.

§        Take advantage of most people’s natural aversion to conflict. If any of the technical people show you up, paint them as “not a team player” and try to manage them out. Your superiors will help you. Corporate and government types want “team players” because committee decisions allow diffusion of responsibility. Someone who points out the Kool-Aid is actually poison is very threatening.

Apart from being a waste of time, space, money and oxygen, the more serious problem is that these idiots usually end up believing their own bullshit. Career success convinces them they CAN actually interpret and distil technical information and scientific results and communicate them, while at the same time balancing inconvenient uncertainties with political or business imperatives.

Of course, they can’t and so we end up with people like De Bernardinis telling everyone “there is no danger” or “risk officers” telling boards banks are sufficiently well capitalised.

The problem for the Italian scientists is that one of them, Franco Barberi, a volcanologist and then acting president of the Major Risks Committee, was present at the press conference and didn’t correct De Bernardinis. He was sitting right there while a man who is evidently a complete fool told everyone there was nothing to worry about. He knew this to be false, must have understood the possible consequences, yet failed to speak up and say: “No, hang on … that’s not true. There is a danger; we’re just not sure how much. Can I suggest …”

Unfortunately for scientists, engineers and technical people everywhere, by acting like a mushroom, Barberi has reinforced the unfair stereotype. Of course there exist technical people who are poor communicators and are hopelessly uncommercial. However, most are comfortable socially, capable of discussing their work and have a reasonable grasp of financial and political realities. That’s how they rose to senior academic or industry positions.

The other five scientists weren’t at the press conference, so there is some doubt as to whether they were aware of De Bernardinis’ statement. The prosecution’s position is that it was their duty to find out what was said and correct it if necessary. Since the reasoning behind judgements by Italian courts cannot be made public for three months after the verdict, we will have to wait to see what the judge thought of this argument, although the verdict and sentences give us a clue.

In many jurisdictions, inaction leading directly to death is viewed as tantamount to either murder or manslaughter where there is an undertaking to do something and to not do it would likely result in death. An example is if a heart surgeon walked out of a heart transplant in the middle of the operation and the patient died.

In New South Wales, Section 18 of the Crimes Act makes it clear that death as a result of the omission of action with “reckless indifference to human life” counts as murder or manslaughter.

This is what the prosecution is saying: You knew there was a risk, yet either said the opposite or effectively said it by failure to correct De Bernardinis' statement. As a result, people did not evacuate as they had planned. Some of them died. Your reckless statement or omission is taken to have caused their deaths.

I can’t see a problem with the element of recklessness. The problem is with cause.

By virtue of their positions, there was clearly an undertaking by the Risks Committee to provide advice as to the possibility of an earthquake strong enough to pose a threat to life. But that’s all they could have done: state that there was a risk, probability unknown.

Did neglecting to make this statement actually cause people to die?

The argument as to cause is: What would people have done differently had the scientists made the correct statement? How would have events differed? What is the likelihood the deaths and injuries would still have occurred?

The correct statement the Risks Committee should have made at the March 31 press conference is that there is some risk of a major quake, but we don’t know how much and for how long. They should then have given advice regarding identifying particularly at risk buildings and any mitigating actions which might be taken.

What would the people of L’Aquila have done had the correct statement been made and no earthquake occurred for five days? Would some have left town and then come back? Would people have avoided certain buildings? How long would they have waited?

What of the buildings which collapsed? Did they comply with building codes? Is that what really caused the deaths? Were some of the buildings which collapsed even known to not meet building standards? Would people have died had the buildings been properly constructed?

What of the older, heritage buildings which cannot be made to comply with modern standards? Would they have been evacuated? For how long?

Given the large number of uncertainties and unanswerable “ifs”, plus the very real contributory factor of building construction in at least some of the deaths, it is hard to see how a manslaughter charge based on reckless omission could be proven beyond reasonable doubt. I doubt even De Bernardinis’ foolish statement could have been proven to have led directly to deaths.

Had the truth been that there was a material probability of a large quake in say, the next week, then clearly defined evacuation measures could have been taken. This is what would occur in the case of a tsunami warning, for example.

However, the truth in this case was that the probability of a large quake was unknown and even if one did occur, its likely timing was also unknown.

Given this advice, people would soon have returned to their homes and lives, probably after only a few days, if they even left at all. Then they would have died.

It is not fair to hang a manslaughter charge on the scientists because they did not deliver a necessarily vague warning. Even the misrepresentations in De Bernardinis’ statement would have mattered little.

Being in positions of public trust, the scientists should have had a far better understanding of the political and legal issues surrounding their statements. They have done all scientists a great disservice, because what will be remembered is: “Scientists failed to communicate risks”. That De Bernardinis was the chief culprit and is not a scientist is probably not even known to many people and will be largely forgotten.

If scientists are able be prosecuted for “failing to communicate risks”, then lawyers and politicians (many of whom are lawyers) need to understand scientific principles. In particular, they need to clearly grasp the inherent uncertainty in many scientific fields and what science can and cannot reasonably say.

Justice Done As Passengers Throw Bogan Scrag Off Train

Many people would have already seen the Youtube video of the drunken bogan woman swearing at, hitting and spitting at passengers on a Sydney suburban train. Eventually, as the train pulls into Hurstville station (in Sydney’s south), the young guys filming her grab her bags, then throw them and her out onto the platform. With the hypocrisy so common to grubs, she then yells to the station guard: “Officer, I’ve been assaulted!”. You can tell the station is Hurstville from the sign on the platform at 13:45 into the video. At 14:08, one of the passengers asks: “What station are we at?” His mate replies: “Hurstville.”

This is how idiots should be dealt with: quickly, summarily and without excessive force. She wasn’t a serious physical threat to anyone (even the middle aged man she hit for telling her to sit down and shut up); just a nuisance who had escalated to intolerable. None of the young guys punched or even slapped her. In fact, one of them can be heard telling her: “I don’t hit women” when she spat on him and challenged him to a fight. When the train finally stopped, they just picked up her bags and threw them out the door, then threw her out after them.

In a liberal society, people should have the right to use an appropriate level of force to defend themselves against not just direct physical attack, but against nuisances such as this bogan scrag.

No one flattened the woman in the video. She wasn’t punched and held down until she agreed to be quiet. That is what would have happened to a man behaving as she did. Despite her breaking the tacit taboo against women threatening men (the quid pro quo being that men don’t hit women), she still wasn’t hit. There was a small and appropriate level of violence used to throw her off the train. Of course the guys laughed at her afterward: by her behaviour, she deserved ridicule.

Women can’t have it doth ways. If you behave like a lady, you’ll be treated like one … and yes, men will have significant input to what behaviour constitutes “ladylike”, because that is what exempts women from male social rules concerning appropriate uses of violence. If some women break the taboo against threatening and physically attacking men (or other women important to them), they are likely to receive violence in return, because that’s how many men deal with physical threats. If violence wasn’t effective in immediately countering violence, the police wouldn’t need to be armed.

An open society doesn’t need police to solve minor problems such as this. Suppose the police had been called. Even had they made it to Hurstville prior to the train, everyone would still have been held up as the train was stopped while the woman was removed and (possibly) arrested. Some might say that this is the correct course of action: better that people on the train suffer the inconvenience of a time delay in order to have authorized security or police deal with the matter.

No it isn’t. Just chuck her off and let everyone get on with their journey. The passengers have been inconvenienced enough by her behaviour; no need to add to it by stopping the train.

“Oh, but if citizens take the law into their own hands, they or she might have been injured.”

So what? That’s a risk adult citizens should be entitled to decide for themselves. In a liberal democracy, citizens make the laws. They are already in OUR hands. If police are not around, citizens should and do have the right to enforce our laws. Ever heard of a citizen’s arrest?

In NSW, it’s Section 100 of the Law Enforcement (Powers and Responsibilities) Act 2002. Section 231 says that only sufficient force required to make and maintain the arrest is allowed to be used.

The guys on the train effectively arrested the woman, then let her go. They actually used less force than would have been required to hold her until the police arrived (as would have been their duty after exercising their right to make an arrest). In any sensible society, police looking at this video would say: “Fair enough” and get on with some real police work.

Looking at the incident and its outcome, I reckon justice was done. The summary action of the passengers was a far better outcome than wasting the time of police and witnesses, not to mention the expense of a court hearing.

The reporting of this story in Britain is quite revealing. The Daily Mail, hardly a lefty flag bearer, ends its article with a quote from a Brit:

Michael Murphy added: 'Why can't passengers do this in my country? Everyone just stands around and pretends it's not happening.'

That’s what happens in a nanny state. Nobody will take any action in case they are accused themselves. Better to all just suffer in silence and wait for “the authorities”. Even if they do turn up before the person leaves, the police probably won’t do anything meaningful either, in case they are accused, particularly if the perpetrator (read “victim”) is not white.

Can you imagine if the spitting bogan thrown off the train was an Aboriginal woman? We’d have had lefty hand wringers crying racism and the press calling Anthony Mundine for a quote.

Had it occurred in America, the woman would probably have manufactured an injury, then sued the guys, with aggravated damages for the “humiliation” of putting the video on Youtube.

Let’s continue to deal with minor incidents in an informal, Australian way, rather than emulating the spineless nanny statism of the Brits or the ridiculous litigiousness of the Yanks.

The Macquarie Dictionary Of Newspeak

Misogyny means hating women as women. Someone who hates a particular woman or group of women as a result of their actions, political positions or some other reason is not necessarily a misogynist. The many facets of a person’s identity are not relevant to a misogynist: they hate women on an ontological level, purely on the basis of the qualities of their gender.

Misogyny is a pathology. It is visceral. It is not the same as paternalism (believing that women, among others, are not suitable for positions of responsibility), sexism (prejudice against women) or chauvinism (being a biased supporter of your own side ie. men). Misogyny is far stronger and its consequences are abnormal social interaction, often associated with violence.

Thus, the Macquarie Dictionary changing its definition of misogyny to include “an entrenched prejudice against women” is absurd. Entrenched prejudice is sexism, which does not require hatred.

Most people love their own children and are fond of children in general, but treat them with prejudice. We don’t allow them to drive, vote, drink alcohol, obtain credit or a host of other freedoms reserved for adults, because we believe they are incapable of handling the responsibility. Men did not hate women in the entrenched prejudice of 1950’s or Victorian era sexism; they simply believed women were not capable of a range of tasks and responsibilities reserved for men.

To suggest these types of “entrenched prejudice” derive from misogyny is absurd: they derive from feelings of paternalistic superiority.

Both sexism and misogyny are serious matters, however I suggest that instances of genuine misogyny are more serious than instances of sexism. Although sexism and misogyny are correlated, they usually have different psychological and social origins. Thus, we should use different words to talk about them and not confuse the two concepts.

People often misuse words. Sometimes that misuse can perpetuate itself and even become common. That does not make the usage correct. I’ve lost count of the number of times I’ve heard some ignoramus say “in agreeance”. Will the Macquarie Dictionary now include “agreeance” as an English word?

It is not sufficient for a significant proportion of the population to misuse a word for its meaning to actually change. These people have not deliberately used the word in an alternative context. Their variant usage is unintentional and is just plain wrong.

For a word to actually change its meaning, it must be persistently and deliberately used in such an alternative way. One possibility is via slang. For example, “sick” can now mean “good”.

Moreover, deliberately misusing a word for a political purpose does not count. To conflate misogyny and chauvinism or sexism in order to reduce your opponent’s standing in the eyes of female voters does not magically alter the meaning of the word misogyny. The speaker is simply being dishonest.

Of course, words do change their meanings over time. The word “egregious” used to mean remarkable or distinguished in the sense of great importance. Now it means remarkable or distinguished in the sense of outstandingly bad or wicked.

For example, Princess Mary, mother of George V’s wife Queen Mary, was widely reported to be rather large. In fact, she had the nickname “Fat Mary”. In its former usage, one might have said that Princess Mary had an egregious vagina, in the sense that it was both large and quite important. Nowadays, using those two concepts in a sentence would be more along the lines of: “You sir, are an egregious cunt!”

The purpose of a dictionary is not merely to reflect currently reported usage. It is to defend against malapropism by instructing the ignorant on what the words actually do mean. In particular, a dictionary should be an accurate record of a language. Its editors have a responsibility to distinguish genuine cultural changes in the usage of words from ignorant or deliberate misuse for political purposes.

The attempt by left wing feminists to paint anyone expressing sexist or chauvinist sentiments as misogynist appears to be a calculated campaign. Is its real purpose to make people believe that anyone thinking women are less able than men at certain tasks or that women should behave differently to men in social settings does so because they actually hate women and therefore have a behavioural disorder, the result being to equate sexism with mental problems?

I suggest that is their true purpose. These are typical tactics of the left: social engineering via the appropriation and control of language. Deliberately alter the meaning of a word reserved for a psychological disorder so that it will now be used to describe anyone accused of behaving in a patronising or exclusionary manner towards women. Now any criticism of a woman can be met with accusations of misogyny, therefore we can exclude the criticiser from debate on the grounds of lunacy.

Want to stifle legitimate debate over one of your ideologically derived positions? Just label your opponent a misogynist, or a racist, or a homophobe, or whatever category of thought criminal you decide.

“Women are statistically underrepresented in senior management. That proves discrimination. We must legislate to overturn this entrenched male privilege.”

“Of course they are underrepresented. They probably always will be. Most women in management take time out to have children. That puts their career back because their male peers increase their job specific knowledge and professional contacts more during that period. It's hard enough for men to climb the management ladder.”

“Well, that just shows that the whole system is rigged by the sexist patriarchy of which you are a part. Misogynist!”

A dictionary especially should not involve itself in politics and social engineering, which is what I suspect is the root of the Macquarie Dictionary’s attempt to alter the meaning of “misogyny”.

To quote editor Sue Butler:

“Misogyny was strict hatred of women and it probably does need a second definition to cover entrenched prejudices of women, as opposed to an out and out fundamental horror at women. We need to add a second definition, which is slightly stronger than sexist but heading in that direction towards entrenched prejudice rather than a visceral hatred.”

Why would a person with an apparently strong grasp of language say that we need to add a second definition, which conflates strongly sexist attitudes (which do not require hatred) with the pathology of a visceral, ontological hatred of women ... unless perhaps they are a fellow traveller, happy to play a part in the social engineering campaign.

As a custodian of linguistic record, the alternative course of action for the Macquarie Dictionary would have been to correct Julia Gillard et al’s misuse of the word, then point out the true meanings of all the words being bandied about.

We could have an evidence based discussion of sexism and genuine gender differences and roles. Perhaps we could even do it in such a way that men would be interested in participating.

For all the plaudits surrounding Julia Gillard’s “defining” speech, it was largely a rallying diatribe to the sisterhood. Do women actually think any men were won over? Because if you don’t care what men thought of the speech, or whether they even listened to it at all, all the sexism and “misogyny” you’re complaining about won’t go away.

If Julia Gillard and other feminists want men to actually listen, they’ll need a less shrill approach. Because if Julia gave that speech to a group of men, one would be blowing a vuvuzuela and another would have their hand cupped to their ear, saying: “What’s that? No, sorry … can’t hear a word you’re saying, love.”