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Malum In Se v. Malum Prohibitum

Monday, May 29, 2006

Dave Champion, of the American Radio Show program, discussed two types of criminal offenses on Saturday night's show (Hour 1: RealAudio or MP3, Hour 2: RealAudio or MP3). They are: malum in se and malum prohibitum. To explain these two offenses, let's see what the courts have said. In State of Washington v. Thaddius X. Anderson, we read:
Criminal offenses can be broken down into two general categories - malum in se and malum prohibitum.  The distinction between malum in se and malum prohibitum offenses is best characterized as follows:  a malum in se offense is "naturally evil as adjudged by the sense of a civilized community," whereas a malum prohibitum offense is wrong only because a statute makes it so.  State v. Horton, 139 N.C. 588, 51 S.E. 945, 946 (1905).
On the one hand, we have malum in se crimes--or natural crimes--such as rape, murder, or theft. On the other, we have malum prohibitum crimes--or codified crimes--such as burning trash in a barrel, building a fence over six feet high without a permit, or not having a handicap ramp in front of your store. Another way to look at these two sets of crimes is one most assuredly has a victim, while the other claims to be offenses against the public welfare. Below is a portion of a table found at the wikipedia website that helps to both explain and draw a clearer distinction between these two terms:

Latin Phrase



malum in se "wrong in itself" A legal term meaning that something is inherently wrong (cf. malum prohibitum).
malum prohibitum "wrong due to being prohibited" A legal term meaning that something is only wrong because it is against the law.
This leads us to the "Click it or ticket" campaign that has been running during the month of May. The National Highway Traffic Safety Administration has compiled fatal vehicle accident data (.pdf) that leads them to believe that by wearing a seatbelt, vehicle operators and/or passengers can increase their chances of survival in a vehicle crash. The NHTSA concluded that after comparing data sets from states that have malum prohibitum seatbelt laws (Primary Safety Belt Use Law States--see table below) and those that don't (All Other States--see table below), states that don't enforce the use of seatbelts have a higher unrestrained fatality rate. I've looked at the same data and can see where they have arrived at that conclusion. But I think that they may have lost sight of the goal of enforcing seatbelt use--to save lives. Allow me to reproduce the tables from which they drew their data so that I can show where their error is.
Table 1
Passenger Vehicle Occupant Fatalities by Age and Restraint Use In States with Primary Safety Belt Use Laws and All Other States, 2000-2004

Occupant Age

Restraint Used
Restrained Unrestrained Total
Number % Number %
Primary Safety Belt Use Law States
5-15 1,320 44 1,685 56 3,005
16-20 5,288 45 6,527 55 11,815
21+ 27,693 50 27,362 50 55,055
Total 34,301 49 35,574 51 69,875
All Other States
5-15 1,047 34 2,066 66 3,113
16-20 3,307 27 8,985 73 12,292
21+ 21,211 36 37,121 64 58,332
Total 25,565 35 48,172 65 73,737
From the above table, we can see that the number of fatal accidents between Primary Safety Belt Use Law States and All Other States is only about 4,000 individuals. All this data shows is that in states where compliance with seatbelt laws is mandatory, a more equal number of individuals died wearing their seatbelts. Other than that, they both seemed to have almost the same number of fatal accidents. To me, all this data indicates is that wearing a seatbelt will neither make you a better driver nor will give you a better chance of surviving a fatal vehicle accident. In other words, the NHTSA really should be looking at four variables when determining whether the use of seatbelts is effective in saving lives. Specifically, comparing Primary Safety Belt Use Law States with All Other States and Fatal While Restrained and Non-Fatal While Restrained vehicle crashes. I really don't see the point in comparing deadly crashes in states imposing a certain type of law with deadly crashes in states that don't when the original goal was to keep people alive.
If anything, one could argue, by focusing on just the data from Primary Safety Belt Use Law States, adults over the age of 20 only really have about a 50 percent chance of surviving a car crash if they buckle up. Surely, this can't be the conclusion we are to take away from their data table. But the numbers don't lie, either. Once again, the numbers would hold more significance if compared to vehicle accidents where people survived. May be they did, but the results didn't prove to be helpful to continuing mala prohibita type seatbelt laws so they ignored them. Besides, there's money to be made by harassing the public for noncompliance.
Do I think you should wear your seatbelt while riding in a vehicle? You bet. But it really is your choice, in my humble opinion, whether you "click it" or not. I'll never impose my will upon you. Instead, I'll present you with the facts and let you decide your own fate. After all, that's what being a responsible adult is all about. So, the next time you see or hear one of those "Click It or Ticket" commercials, remember the two main reasons they exist are because we have all decided that government's beaurocracy knows better than the individual in how to keep us safe and that the individual cannot be financially responsible for himself in the event that he does get hurt.
So, the next time you see or hear one of those "Click It or Ticket" commercials, remember the two main reasons these commercials exist are because we have all decided that your personal safety is better protected by government's beaurocracy (.pdf) over individual choice (a.k.a. liberty); and the individual cannot be trusted to cover the incurred costs (a.k.a. responsibility) in the event that he does get hurt.


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