Wikipedia:Reference desk/Archives/Humanities/2022 March 14

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March 14

How was it possible, that british Prince Andrew was tried in an american court ?

The most important basic right of any modern Rechtsstaat is Nulla_poena_sine_lege, which is also accepted by any states human rights. This raises the question, how it was (legally) possible, that an American court tried a Britishman, that was framed by an Australian for something basically only illegal in the USA ? Is it really possible, that american courts apply their law into other countries business ? And why was great Britain so happy, to evict its own citicens (and royal!) to a foreign country ? Does british human right not prevent the eviction of its citicens, like every other state ? For contrast in Germany it is forbidden (and highly frowned upon) to apply foreign law on a citicen (see Criminal_case_of_Lisa_F. (Double Jeopardy (Germany,France), wrong juristiction), Kalinka_Bamberski_case (Lawrow (Yes, that one) bashes Germany) or Marco Weiss (German convicted in Turkey) ). I know, the MeToo craze doesn't really care about the law, and I book the Epstein fuzz under "Yankees are Prude", but the conviction of Andrew seems to be very bizarre for british law (and against various human rights, that britain should has signed). For contrast Edward Snowdon (in Swiss) and Roman Polanski (in Russia) are not evicted. (sorry for the bad english) --87.168.91.234 (talk) 16:37, 14 March 2022 (UTC)

It's not your English that's problematic, it's your somewhat sweeping statements regarding entire nationalities! :P SN54129 16:52, 14 March 2022 (UTC)

So, you have no problem with the idea of someone of your country going into another country and engaging in activity that is illegal there but not being able to be prosecuted for said behavior because he or she is not from that country? Really? Do you really believe in the idea that travelers can commit whatever crimes they want with impunity once they are out of their own country? --User:Khajidha (talk) (contributions) 16:57, 14 March 2022 (UTC)

The premise of the question is incorrect. There were no criminal charges against Andrew in the United States. It was a civil lawsuit concerning alleged sexual misconduct in the U.S. There was no trial. Andrew settled the case out of court. Cullen328 (talk) 17:00, 14 March 2022 (UTC)

Other factual errors: Edward Snowden lives in Russia, which granted him asylum and permanent residency. Roman Polanski pled guilty to having sex with an underage girl but then fled to France, where he has lived for many years. Cullen328 (talk) 17:05, 14 March 2022 (UTC)

• See our article on the Territorial principle of legal Jurisdiction. In essence, in both civil and criminal law, the trial takes place where offense was alleged to have taken place. Blueboar (talk) 17:30, 14 March 2022 (UTC)

Although presumably Vladimir Putin will appear at the International Criminal Court in the Hague, Netherlands to stand trial for his war crimes, rather than Ukraine. If he is still alive, of course. Martinevans123 (talk) 17:40, 14 March 2022 (UTC)

IP 87, it's not "eviction". It's called extradition, specifically UK–US extradition treaty of 2003. Martinevans123 (talk) 17:45, 14 March 2022 (UTC)

Extradition does not apply to civil lawsuits, only to criminal charges. Cullen328 (talk) 17:52, 14 March 2022 (UTC)

Yes, as in Edward Snowden getting "evicted". (But not as in Death of Harry Dunn, it seems.) Martinevans123 (talk) 18:11, 14 March 2022 (UTC)

The drive-by OP geolocates to Germany, and as noted, his premise is full of errors. But I have to wonder, is there no law against statutory rape in Germany? --←Baseball Bugs ^{What's up, Doc?} carrots→ 19:03, 14 March 2022 (UTC)

@Baseball Bugs: If only there was a free, online resource, etc  :) SN54129 19:07, 14 March 2022 (UTC)

The OP needs to read it. --←Baseball Bugs ^{What's up, Doc?} carrots→ 19:41, 14 March 2022 (UTC)

Yes, but age of consent is generally 16 in European countries, and the woman was 17 at the time of the offences. Fgf10 (talk) 06:38, 15 March 2022 (UTC)

The tricky part being "consent". --←Baseball Bugs ^{What's up, Doc?} carrots→ 14:46, 15 March 2022 (UTC)

Not to mention the fact that at least one of the offenses occurred on US soil, where European ages of consent are not relevant. It may be legal to have sex with a 16 year old where you are from, but if you are not in your own country it is always best to be absolutely sure of 1) the age of the person in question and 2) the age of consent in the country you are in (in the case of the US, the age of consent in the specific state). --User:Khajidha (talk) (contributions) 15:19, 15 March 2022 (UTC)

At least one of the alleged offenses, please — we aren't here to decide the facts in dispute between Andrew and Ms Giuffre, and BLP applies here. --Trovatore (talk) 15:37, 15 March 2022 (UTC)

The complainant in the court case has American citizenship, and one of the occasions of forced sex with the prince was said to have taken place in New York.^[1] It should therefore be no surprise that the case was brought before the United States District Court for the Southern District of New York, in whose jurisdiction the alleged tort occurred.  --Lambiam 09:33, 15 March 2022 (UTC)

"... he was at home after attending a children’s party at PizzaExpress in Woking": [2]. Martinevans123 (talk) 10:01, 15 March 2022 (UTC)

Rechtsstaat. A very German Word, you don't think? 2A02:908:426:D280:7100:3AFC:91AC:329B (talk) 15:28, 15 March 2022 (UTC)

Yes, as is außergerichtlich beigelegt. Martinevans123 (talk) 15:34, 15 March 2022 (UTC)

Thanks for the Awnsers. The Extradiction treaty was what I was looking for. (Good thing, the UK is now out of the EU.). It is still grotesque, that a man can get extradicted for an act, that should have happened in 2001 after a law from 2003. This seems to violate Nulla_poena_sine_lege anyway. For contrast Mamoun Darkazanli succesfully prevented extradiction from germany for alledged offences in 2001 after a extradiciton-law from 2002. I am also puzzled, that the USA had so high age limits even back then (your teen-comedies seem to contradict this).

Also the statement to be absolutely sure of 1) the age of the person in question seems to violate Nulla_poena_sine_culpa. Can you really be tried in the USA for an offense you didn't know off ? (In fact I am pretty sure, Andrew didn't know the age of his groupies - (some Rockstars come in mind here :-) ) ). This would be already absurd for real crimes like theft, but especially absurd for legal-good-less offences like that. For contrast Merkel banned prostitution under 16 in 2008 and under 18 in 2015, but this law is barely enforced, because no sane prostitute would give her identity. Also the law explicitely excludes entrapment, same goes to sex with a teacher - another law that could easily be abused for entrapment.

For your interest: Germany (like most other countries) has no statutory "rape" or "age of consent" - this is a Common Law thing. We have sexual abuse of children, which - despite beeing much aggravated under Merkel - still applys only to children (=persons under 14). If you are old enough for jail, you are old enough for sex (and alcohol). And until a few years ago was de facto legal if the perpetor is underage, because petty offenses could be dropped then. We also make a large difference if you sexually abuse a child (and by child I mean child, not adult groupie) or rape it, beacause it makes an obvious difference for the victim. --87.168.91.234 (talk) 16:44, 15 March 2022 (UTC)

Many Americans are fascinated by the British Royal Family and might well relish the opportunity to observe one of its members in one of their very well-constructed courtrooms. Wasn't sure what you meant by "your teen-comedies seem to contradict this". Thanks. Martinevans123 (talk) 17:10, 15 March 2022 (UTC)

I presume the original poster is referring to the large number of teenagers depicted as having sex with each other in such comedies. This is not the same as a grown man abusing a minor. Which is what was alleged here. --User:Khajidha (talk) (contributions) 17:47, 15 March 2022 (UTC)

The OP continues to make false implications. Andrew was never charged with any criminal offenses in the U.S. and was never subject to extradition. This was a civil lawsuit that never went to trial because Andrew freely chose to settle out of court. Cullen328 (talk) 18:09, 15 March 2022 (UTC)

"Can you really be tried in the USA for an offense you didn't know off ?" Of course. See Ignorantia juris non excusat and Willful blindness.  --Lambiam 18:13, 15 March 2022 (UTC)

As a guy living in Germany and know a bit about law. I highly note that not all things we said are correct. I'm a bit offensed. 2A02:908:426:D280:7100:3AFC:91AC:329B (talk) 20:10, 15 March 2022 (UTC)

It's "offended". You may have been answered highly with "außerirdich", maybe, in the back of one's mind. It's understandable; New York is a place obssessively associated with the word "Alien", in all the contemporary possible memes. In addition, pizzagate -not that much distant from saucers, the same-, is a story taking place near a renowned Martian landing ground from the UK. A sorry set of combinations, and it goes on, goes on, goes on. --Askedonty (talk) 20:30, 15 March 2022 (UTC)

Ohhhhhhhh...

The Grand Old Duke of York

He borrowed 12 million quid

He gave it to someone

He'd never met and

For something he never did. [3] Martinevans123 (talk) 20:36, 15 March 2022 (UTC)

Cute. Without pronouncing myself either way as to the content, I'd offer that both scansion and impact might be improved by leaving out a few unnecessary words, thus:

The grand old Duke of York

He paid twelve million quid

To someone that he'd never met

For what he never did

--Trovatore (talk) 04:33, 16 March 2022 (UTC)

Of course we can only speculate as to whether "borrowed" was unnecessary or not. Martinevans123 (talk) 10:30, 16 March 2022 (UTC)

I don't want to get into this too much but I'd note that even in the case of Roman Polanski, he has had to avoid going to a number of countries given the risk of extradition as Roman Polanski sexual abuse case says. Indeed our article Roman Polanski suggests that for a time it was only France, Poland and Switzerland he dared visit although it's not clear this is still the case. Interesting enough, in the case of Poland, it looks like it probably remains relatively safe for him, I'm not so sure about Switzerland since the rulings seem less clear cut although from our article I think he may have visited Switzerland since 2009.

Also although extradition wasn't involved in the Prince Andrew case as there were no criminal charges as mentioned repeatedly above, as our article Extradition discusses most extradition treaties come in one of two forms. Either they have a list of offences for which extradition may apply (and such lists only cover stuff which are offences in both countries), or they require that alleged criminality is an offence in both countries (at least if it was committed in the country) generally with a possible prison sentence of a year or more.

The requirement for double criminality helps prevent extradition being used for stuff which are treated different in different countries. For example criminal defamation or other free speech issues. (Most treaties also give the extraditing government absolute final say in whether to proceed or at least specifically allow countries to disallow extradition if they regard is as a political prosecution or similar, but they prefer to avoid doubt in cases where there's clear disagreement on whether something is an offence.)

I'm fairly sure this applies to most UK treaties except perhaps the EU ones (at least when they were part of the EU), indeed it's something which has came up a lot in some cases like Richard O'Dwyer and I think Julian Assange. The double criminality issue also came up a lot on other high profile cases outside the UK like Kim Dotcom/Megaupload legal case and Extradition case of Meng Wanzhou.

Given the OP's comments the Assange case is of itself perhaps of interest to this discussion because of the sexual assault case which lead to him hiding out/taking refuge in the Ecuadorian embassy involved alleged offences in EU member Sweden of non-consensual condom removal/stealthing, something which at the time there was some doubt whether it was an offence in much of the world including the UK and much of the US, and I think Germany. Things have become clearer in the UK and it seems Germany since then although still less clear in a lot of the US.

The fact the Kim Dotcom etc cases are still ongoing over 10 years later, and this is without anyone having escaped to an embassy, also IMO shows how complicated extradition can get when mistakes are made, the issues aren't simple and those involved have sufficient resources to fund extensive appeals etc.

Note also while Germany and France and some other countries do not allow extradition of their own citizens, this is very far from universal and is at times controversial. Some countries notably China do have extraterritorial jurisdiction for offences committed by their citizens abroad so may instead prosecute citizens locally for such offences such as Trial of Xiao Zhen but it's generally a difficult process since all witnesses and evidence is in a different country and experts etc may be fairly unfamiliar with the legal norms and requirements in the other country. (Double criminality can mean there is some need to deal with this for extradition but it tends to be more minor as you don't have to prove the case beyond a reasonable doubt.)

While the alleged perpetrator of a crime may have to deal with something similar if they were only holidaying or temporarily resident in that country, less so if they were resident a long time and sometimes even their whole life until they left to escape punishment; the idea as several commentators have said above is that they've accepted that risk by choosing to visit that country and allegedly commit an offence. It gets more complicated in cases like O'Dwyer, Assange, Dotcom, Meng Wanzhou, Christopher Tappin, NatWest Three, Gary McKinnon, Abu Hamza al-Masri etc where the alleged perpetrators were not in the foreign countries when the alleged crimes were committed (Redacted).

Whatever the OP's claims about non enforcement according to Prostitution in Germany, Germany does actually allow the prosecution of Germans for "contract sex services from any person younger than 18" for offences committed abroad, as is common in many Western countries nowadays to deal with child sex tourism in countries with poor enforcement of such laws. While the age changed either in 2008 or 2015 it seems apparent that even within modern German criminal law this is no longer accepted.

Also according to Ages of consent in Europe#Germany "sexual acts committed by a person above 21 with a minor under 16 involving exploitation of the minor's individual lack of capacity for sexual self-determination" is something that can be prosecutable ex officio if there is special interest something which happened during German reunification so isn't new. So the OP's claims that it's fine from 14 and above outside of prostitution seems to be incorrect. Rape in Germany says something similar. (Redacted)

And if you want to get into country comparisons, I'd suggest that Germany's laws on sexual offences are at times controversial considering they only criminalised Marital rape in 1997 which while earlier than some other European countries is generally considered relatively late as our article mentions. Or since Switzerland came up earlier, they're also known for their smallest canton Appenzell Innerrhoden only giving women the right to vote in local issues in 1991 after a Supreme Court decision Women's suffrage in Switzerland.

As for the ignorance thing according to a German law professor [4]

Common parlance justifiably says: “Ignorance of the law does not protect against punishment.” And that also follows from § 17 of the German Criminal Code. This says: Whoever lacks knowledge that an act is wrong will only not be punished if he is unavoidably unable to perceive legal wrong.

The example given in the next question is interesting since although the person was convicted of a lesser offence Totschlag, they were still convicted although it seems possible they may have considered what they did not wrong in any way. So it's not clear to me ignorance of the law is as much of an absolute barrier in German law as the OP claims.

P.S. I have to be very careful with what I say given BLP, but if the OP thinks most British people think of him as someone unfairly targeted by the evil US civil courts or whatever, I'd suggest they look into look into public opinion of Prince Andrew in the UK especially after his disastrous TV interview. I wouldn't be surprised if public perceptions of Prince Andrew are actually more negative in the UK because despite the fascination with the royal family in the US and the somewhat high profile recent case, there are many people who'd have no idea who he is. Notably also while views of the royal family have improved since the days around Diana's death this is still mostly concentrated on the Queen and to a lesser extent Prince William and his family.

Nil Einne (talk) 05:53, 16 March 2022 (UTC) (redactions made and additional comment offer to try and deal with Cullen's concerns below Nil Einne (talk) 09:06, 16 March 2022 (UTC)

On the "ignorance" point, note that — at least in Anglo–American law — there is a sharp difference between mistake of law and mistake of fact. If Andrew did in fact engage in sexual relations with Giuffre when she was 17, and knew she was 17, but did not know that was against the law in New York or in the US Virgin Islands (whichever it was, or both, I can't be bothered to look it up right now), that would be a mistake of law, and would not usually protect him. However, if he did not know she was 17, that would be a mistake of fact. Mistakes of fact are ordinarily quite a different matter, because they militate against the finding of mens rea, which is an element of most criminal offenses. If the law is written in such a way that it did not matter whether he knew her age or not, that would make it to some extent a strict liability offense, which the common-law tradition historically has looked askance at. --Trovatore (talk) 06:04, 16 March 2022 (UTC)

I made some changes to my comment [5] before Trovatore replied which seems to have been lost in an EC. I've reinstated these changes but assume Trovatore hasn't seen them although they don't seem to affect their reply. Also the person I quoted is an assistant professor not a professor. Nil Einne (talk) 06:21, 16 March 2022 (UTC)

I feel compelled to point out to Nil Einne and anyone else who feels obligated (incorrectly) to analyze the Andrew situation in the context of criminal law in the U.S or other countries, to point out quite forcefully that Andrew has not been formally accused of any criminal offense in the U.S. or anywhere else. The allegations were part of a CIVIL court case, and that should be kept in the forefront of the mind of every editor commenting here. Conflating criminal law with civil law is a serious error, and when it involves a living person, it is a severe violation of WP:BLP policy. Personally, I think that Andrew showed very poor judgment and appears to have been civilly liable. But we cannot allow implications of criminality to flow from the outcome of civil cases. Cullen328 (talk) 06:40, 16 March 2022 (UTC)

@Cullen328: For clarity I never intended to analyse the Prince Andrew situation in terms of criminal law and thought I made this clear in my comment. I've made some minor adjustment to my comment to try and deal with concerns. If you feel that there is a way I can make this even clearer, please tell me how with a ping and I'll amend my response with it.

The context of course is that as I see it, several people including the OP have made claims about how the law works in various countries including extradition which while they did not apply to the Prince Andrew situation, are still IMO wrong. As I've done since my earlier days on the RD, when people make claims which I feel are incorrect, I feel it's fair to challenge such claims since those claims remain on the RD and the archives even if they don't relate to the specific situation which started the situation.

(If you don't believe me feel free to check and you can find many, many cases, especially in the more distant past where I explicitly acknowledged the some commentator was confused about some situation but putting that aside, their comments were wrong for reason/s XYZ. Likewise when someone made an aside which I feel is incorrect. Actually it's not uncommon I do this outside the RD. I know it annoys many but I dislike claims I feel are incorrect or inaccurate and sometimes they bug me enough that I'm willing to do research to challenge them. In this case, I spent ~5h researching and writing this because of how much it all bugged me and even despite that still managed to make a major error which I fortunately noticed within ~10 minutes.)

My comment also intentionally dealt with issues on both "sides" of this as it seemed to me there were problems on both sides. For example the OP's suggestions that there's no recognition of differing abilities to consent in German law outside the age of 14 and prostitution. But also those who implied that if a person cannot be extradited by a countries laws or constitution (for example because they're a citizen) this means they can go to another country, commit crimes, run away to wherever they protected and get away scot-free. As I pointed out this doesn't have to be the case, some countries ironically China, do have ways to deal with this namely by prosecuting the people locally. While I pointed out the difficulties of such a situation, I tried as far as possible to avoid offering a personal opinion (I did offer a few on others issues which I generally kept in small type) on which system is better (allow extradition or prosecuting locally).

Anyway in the absence of a comment on how I can amend my response, my last comment will be that AFAICT, the OP's implications about Germany sexual exploitation laws are even more incorrect than mentioned in my initial response. This is sort of hinted in our articles linked above but also comes across from a naïve reading of the law itself.

For example, [6]. It seems section 182 technically allows the prosecution of people who have sex with someone under the age of 18 both in case where there was "consideration" (money etc) but also "taking advantage of a predicament". I haven't been able to find much about how and when these offences can be prosecuted. While as per Trovatore's point it might be that genuinely ignorance prevents an prosecution, which may apply to the general case of someone close to the age of 18, this is likely to need to be reasonable. E.g. I find it unlikely that someone can rape a baby and say "I was told she was 18".

Meanwhile section 232a [7]:

Whoever performs sexual acts on or allows sexual acts to be performed on them for a consideration by a person engaging in prostitution who has been the victim of
1. human trafficking under section 232 (1) sentence 1 no. 1 (a), also in conjunction with section 232 (2), or
2. an offence under subsections (1) to (5),
and in doing so takes advantage of that person’s personal or financial predicament or helplessness on account of being in a foreign country, incurs a penalty of imprisonment for a term of between three months and five years. Whoever voluntarily reports an offence under sentence 1 no. 1 or 2 committed against a person engaging in prostitution within the meaning of sentence 1 to the competent authority or voluntarily occasions such a report to be made incurs no penalty under sentence 1, unless the act had already been discovered, in whole or in part, at the time and the offender knew this or, based on a reasonable assessment of the circumstances, should have expected this.

For clarity subsection 1 deals with the taking advantage of for those reasons mention at the end (especially or exclusively for those under the age of 21, I'm unsure on this point), while subsection 3 deals with force, threat of serious harm or deception (for any age).

From what I can tell, this came about in 2017 [8] (activist group but it seems unlikely to me they're wrong about that particular thing), although there has been talk about it for longer than that [9]. Likewise AFAICT, this has been to deal with concerns over sex trafficking and coerced or forced prostitution in Germany, see e.g. [10] [11]. While the perpetrators of such crimes in Germany have been subject to prosecution for a while, the legalisation of prostitution in Germany means customers are largely protected from prosecution. While there seems to continue to be widespread opposition to the Nordic model approach to prostitution in Germany, the idea seems to have been to reintroduce criminality for customers of victims of such offences in some cases rather than solely targeting those responsible in the trafficking/coercion/force.

I cannot find or offer any comment on how this is meant to be read like whether "helplessness on account of being in a foreign country" is one part of all of the components require foreign country, I mean besides having zero knowledge of German law or German an English translation even a professional one is always going to miss stuff. I'm also confused about the repetition of the "person's personal..." part as it seems to make including subsection 3 pointless since AFAICT subsection 1 would already cover this (well excepting the confusion over the age issue). In that vein, I've also been unable to find out anything much about precisely what circumstances these are supposed to apply beyond the English translation of the law like what circumstances should lead to a "reasonable assessment" to expect what was happening.

I did look a bit but found it hard to find anything in English since most stuff I found either deal with direct perpetrators or with proposals/concerns rather than actual laws dealing with customers. This is the reason I included the activist link when I'd normal prefer better sources, that source does claim the reforms are seen as a failure but this is an area where being an activist group makes such a statement hard to trust. However IMO this is still enough to cast even more serious doubt on the OP's claims about how such things are treated in modern German criminal law. (The OP's claims about enforcement might be correct.)

I'm also unconvinced about the OP's claims of teacher-student sexual relationships [12] although I can't be bothered looking in to that one especially if someone is going to accuse me of making Andrew into a teacher.

Nil Einne (talk) 09:06, 16 March 2022 (UTC)

Thank you for the responses. I was talking about the error of fact in the Andrew case. That is what matters here, since Andrew could hardly tell if an adult woman is 17 or 18. There is still the thing, that the extradiction act came later (unless, there is a different earlier act for civil cases). After all sueing a man abroad would do nothing, if his country still protects him.

Speaking og German law: I was talking about the clause If the teenager's behaviour indicates little wrongdoing the case is not persecuted in 182 and 174 (teacher/pupil - just mentioned beacuse it has a simlar clause), that explicitly excludes error of fact and corner cases. I want also point out, that the prudish laws quoted above stem mostly from the time of Angela Merkel and were much more relaxed in the time before. In fact prostitution was mostly unregulated in the past. 182 orginally only banned deflorating a honourable girl under 16 against their parents will without marrying her. (Christiane F. (From the Schmidt Era) is a good example how the past really was). Kohl aggravated the morals in 1998, but it was not nearly as bad as now. Gerhard Schröder (who was an 68er after all) made prostitution a normal job (There is even a workers union called Hydra). Angela Merkel then criminalized it piece by piece, including even forced registration and health checks. Europe forced highly controversial laws (the Istanbul Convention (about "Rape" that isn't rape) and Lanzarote Convention (about "children" who aren't children) ) ontu us and the moral panic about the Edathy-affair (Operation Spade) - a judical disgrace where a man got punished for something that wasn't illegal - did the rest. Ironically the highly succesful Schulmädchen-Report is now illegal since Merkel. The enforcement of the anti-prostitution laws is of course low, because criminalized prostitution simply retreates from the public. (How do you think the Syrian refugees (or gay Poles disowned from their families) are winning their bread). Meanwhile the cops made dedicated divisions to ban under-18-erotica (what the youth seems to make and spread as protest). This is also a example, why crimes without a Rechtsgut(<-You need an Article about that) don't make sense. If you ban something like sex or drugs, you either generate a lot of crime or drive it into the underground.

Also Totschlag refers to lesser, but still intentional homicide. It is for cases like bar brawls, mass riots or infanticide. Meanwhile Mord (Murder) is for dihonourable killings, like Vigilantism, Banditry or Assasination. There is also Fahrlässige Tötung (neglectfull killing) and several crimes of (_insert_violent_crime_) resulting in neglectfull death. --87.168.91.234 (talk) 17:45, 16 March 2022 (UTC)