What is Associational Guilt?
The term ‘guilty by association’ is a legal concept that describes a situation where a person is presumed to be guilty of a crime or wrongdoing, based on their association with someone who is guilty of the same or a related act. The principle behind this legal concept is that individual actions should not only consider the result of the act, but also the context in which it was performed.
This leads to the general idea that an individual is accused and presumed guilty based on an unproven association with that person. Furthermore, the concept allows for a person to be held liable or culpable for the actions of another person, based on some implied or unproven involvement in the crime.
The idea of being ‘guilty by association’ has many applications in the course of legal proceedings. From a prosecutorial standpoint, it may allow for an additional charge or a more severe consequence to be levied against a person based on his or her relationship with an alleged criminal. It can also be used in civil cases, allowing for a party to be found responsible for the actions of someone else .
One of the most common applications of the principle is in the case of a criminal charge against two people, who may or may not have conspired after the fact to assist in a crime. This can include accessories after the fact, which is a person who aids another after a crime has been committed.
A major question that has been posed by this legal principle is whether there is any real benefit to declaring a person guilty by association. In most cases, the principle plays out in a court of law as a basis for an additional charge or a more severe consequence for an action. A lesser known aspect of the principle is the fact that, in some circumstances, a court may deem a person guilty by association, but not subject him or her to any degree of consequence.
More important to understand is the fact that being guilty by association is an entirely separate issue from what it means to be guilty of a crime. While a person who is guilty of a crime often carries an association with the criminal act, simply being present or knowing about the crime does not automatically make him or her an accessory after the fact, in many jurisdictions.
Historical Background of Associational Guilt
The concept of "guilty by association," which our modern perspectives associate with the entertainment arena and tabloid journalism, predates most of the social attitudes we associate with it. As an overarching legal doctrine, "guilty by association" can be traced to laws passed in the late 18th century.
In terms of cases, one of the earliest "guilty by association" law rulings appeared in a 1941 Louisiana case in which the Louisiana Supreme Court reiterated that associating with illicit characters would make a person guilty of the same.
The ruling can be traced to 1838 when an amendment to the constitution was adopted in Louisiana that made all individuals (part of the state) and all persons abiding in the state responsible for the actions of others. In other words, any person may be charged with a crime that someone else committed, provided that person "associates" with persons engaged in those criminal activities.
In 1952, the Louisiana Supreme Court reiterated its position on "guilty by association": "The well known rule of law in this State is that when a person goes along with another person in the perpetration of crime and becomes engaged in it with him, he is likewise guilty of it" (State v. Ducote, La., 59 So.. 2d 387). This ruling held that those who are guilty by association incur the same sins of the persons with whom they associate.
Two other key cases have helped to maintain the "guilty by association" doctrine over the years, including:
A 1971 Florida case in which the court defined the term as one referring to the culpability of an individual for a crime that he or she did not commit himself, but would attach if a jury found that he acted in concert and with the requisite intent to commit the crime, and was criminally liable with him, as set forth in 1971 Fla., 154 So. 2d. 249, 251, rev. denied 154 So. 2d 258 (Fla. 1963).
154 So. 2d at 251.
A 1999 Louisiana case in which the Louisiana Supreme Court noted that "A person’s guilt may be established through his membership in a criminal organization, in conjunction with evidence of his criminal involvement. See U.S. v. Perm. Party, 2002 U.S.App.Lexis 28689, *4 (5th Cir. Nov.27, 2002). There are two essential elements in every conspiracy: 1) the unlawful objective; and (2) the illegal act or acts in furtherance thereof. U.S. v. Manton, 10 F.2d 905, 910 (2nd Cir.), cert. denied, 271 U.S. 652, 46 S.Ct. 697, 70 L.Ed. 1152 (1926). A common understanding among conspirators as to the unlawful objective of the association is the essence of a criminal conspiracy. See U.S. v. Bell, 954 F.2d 502, 505 (5th Cir.1992); Cert. denied, 113 S.Ct. 440 (1992). State v. Nolen, 739 So. 2d 648 (La. 1999).
Use of Associational Guilt in Criminal Law
Guilty by association is mainly preserved in cases that deal with gang violence or organized crime. It is often used to justify larger charges, or harsher penalties for someone who has been accused of a crime, but not convicted. They may have faced lesser charges and are now convicted, but can face additional charges based on their relationship with the actual perpetrators. By using this strategy, prosecutors can secure longer prison sentences for people in organizations like gangs and organized crime syndicates, and use these connections as evidence when convicting people in related cases. There are venturing into questionable territory, however, as many states still do not have readily recognized penalties for people who are found guilty by association. Prosecutors still use this strategy in most areas, however, often with dubious results. The results can be highly disproportionate, and may lead to unnecessary jail time. Most commonly seen in the crimes of conspiracy and racketeering, guilty by association is still protected by the laws in most states. Many states involve the use of this law in the drug trade. In Texas, each person involved in the drug trade is treated as sharing the culpability of the entire organization, which means that even if you were not the driving force behind the drug trade, you could be punished as though you were. Similarly, they also treat people involved in human trafficking and other criminal organizations the same way. Although there are questionable uses of the law, some uses are less controversial. For example, an innocent bystander or friend can be pulled into a violent crime that they did not participate in or was not even aware of. Rather than treating them as separate from the crime, they are pulled in through evidence that means nothing in a normal situation. An arsonist’s girlfriend may be charged for murder, for example, because the arsonist’s crime caused multiple deaths in their house fire. In another situation, two friends who steal a car are charged together, even though only one friend knew that the car was stolen. Both of these cases, while rare, can be charged in most states under the law of guilty by association. Prosecutors in most states are currently able to take a hard line on people they feel are guilty by association. This can be used in a variety of situations in a wide range of circumstances. The sentence attached to being guilty by association can be a burden on those who simply happened to be in the wrong place at the wrong time, or a friend of a friend who may have committed a crime. Most of the time, it is used as an excuse to hold onto people longer who have indeed committed a crime, in the hope of discovering who the real criminals are. In other cases, however, it can be used to leverage lengthy prison terms or other sentencing against a person who has done very little wrong, or has no involvement at all in the crime that caused their arrest. The result is often overcharging, or charges that are based solely on circumstantial evidence.
Controversies and Criticism Surrounding Associational Guilt
Despite its widespread application, the "guilty by association" legal doctrine is not without controversy and criticism. Among other things, some legal scholars have opined that the doctrine essentially represents a mechanical application of guilt without necessarily considering the nature of the crime or the culpability of the associated individual. For example, California attorney Benjamin Feuer writes that, "if one person argues about cat poaching long enough with someone who subsequently (separately) becomes charged with that crime, they can, without ever committing the original crime, be found guilty by association and sentenced to prison." Professor Sherrie Russell-Brown of Rutgers University and editor of the book Racial Criminal Justice, further observes that the "guilty by association" doctrine "engenders unwarranted assumptions about people," and can require a defendant to prove a negative—namely, he or she is innocent of any association with illegal behavior. In other words, as Professor Russell-Brown explains, "[i]n order to prove their innocence, they must also prove their ‘disassociation.’" Furthermore, some scholarly commentators question whether the rationale for the "guilty by association" doctrine actually serves the best interests of either fairness or justice. A series of student-written law review articles published out of the University of California at Berkeley, for example, conclude that the rarely examined principle of "guilty by association" "is not only unfair but it also fails to advance the state’s goal of combating crime."
Legal Protections Against Associational Guilt
In the United States, the law affords a number of legal protections against false or exaggerated charges of "guilt by association." The presumption of innocence is the strongest protection in this regard. Under the presumption of innocence, it is the prosecution’s burden to prove guilt beyond a reasonable doubt. Furthermore, it is up to the prosecution themselves to produce compelling evidence that a given person was aware that their "guilt by association" behavior was criminal rather than innocent. In other words, unless the defendant had tangible evidence that the actions of the person they associated with were illegal, it is unreasonable to believe that the defendant had any knowledge of wrongdoing. Even if the connection between the defendants actions and the actions of the person they are accused of "associating" with are too close to be ignored, their legal counsel may be able to prove that the defendant did not have the requisite knowledge at the time to be guilty by association and is therefore innocent. The Supreme Court of the United States rules on the constitutionality of a law if the issue is brought before the court , and previous decisions of the Court carry significant weight when it comes to subsequent cases. In U.S. v. Peoni (1938), the defendant argued that he was not guilty by association even though he aided and abetted a known bootlegger in violating the Volstead Act (the ruling that prohibited the sale of alcohol until 1933). The defendant also argued that, as set forth in the Universal Declaration of Human Rights (Article 31), he was entitled to an individual trial separate from the trial of his associates. The Supreme Court did not accept either argument. Peoni was convicted because they later found that the defendant provided the men in question with tools and services that had directly resulted in the production of liquor from which they profited. As an aiding and abetting charge is essentially a guilty by association charge, even when an innocent party cannot be physically connected with the crime, they are still guilty if they contributed in any way to that crime being committed. Guilty by association laws are complex and vary depending on jurisdiction. If you or someone you know is facing criminal charges as a result of such accusations, your first step is to secure legal representation for yourself or your associate.
International Approaches to Associational Guilt
In many countries around the world, "guilty by association" has not emerged as a common law concept; but it is certainly not without relevance to those critical of advanced criminal justice systems. One of the primary focuses of critics is treatment of individuals who are charged with a crime by virtue of the fact that they were somewhere near the crime.
Countries like Norway, Germany, and Finland have long held a non-punitive view of those who are charged with crimes due in whole or in part to the actions of others. These nations use restorative justice models that are considered by many to be progressive, rather than stigmatizing and destructive. In Norway, for example, offenders are not incarcerated in the same way they are in other modern nations. Instead, they are punished through various rehabilitative means. The punishment is technically a prison sentence, but offenders serve out their terms by doing hard labor, like working on a ship. Killers serve out about 22 years in these prisons. Domestic abusers serve an average of 7 years.
To be clear, the punishment is not less severe in Scandinavian nations. It is simply meted out in a less aggressive way, without causing the same amount of damage to offenders and their families. Extensive research has shown that people who avoid punitive measures are more likely to be productive members of society upon release from prison than those who serve out sentences in the same way that offenders do in the United States. This is, in part, due to the collateral damage done by long-term incarceration. People who suffer public shame may never again feel comfortable participating in society. Children with incarcerated parents are more likely to get into trouble with the law than those whose parents are actively engaged in their lives, and these numbers include children whose parents are incarcerated for crimes that the kids did not commit. In Puerto Rico, a victim’s relative cannot be charged with "guilty by association".
In contrast, in China, people are often held accountable for the behavior of their relatives. The Chinese Communist Party (CCP) even has a name for it: guanxi. Guanxi requires that the children of prisoners serve prison terms as well, which essentially interprets "guilty by association" in a very literal way. Kids with incarcerated parents are often socialized through the stigma and become criminals themselves.
Unlike in the United States, these concepts are not covered by international law or treaties. Fortunately, the United Nations has worked to address the situation of those who face at risk of punishment just because of their relatives’ crimes. The Basic Principles on the Independence of the Judiciary were adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders. In Article 6, the UN states, "It is the duty of all governmental and intergovernmental organizations to respect and observe the independence of the judiciary and not to interfere with that independence in respect of matters which are not of direct concern to them, including international standards and norms concerning the independence of the judiciary". By issuing this statement, the United Nations has made it clear that it supports independence of the judiciary.
The potential for change does exist. Belgium, France, Germany, the Netherlands, Sweden, Switzerland, and the United Kingdom have adopted laws that protect divorcees from deportation.
Tips for Individuals
As noted, guilty by association constitutes indirect liability for the acts of others if:
• a person knows that someone else is using or has used of a computer with a direct connection to an online location that the first person would otherwise be prohibited from visiting,
• the person is the parent or guardian of the person using the computer, and
• the parent or guardian fails to protect his or her child from use of the computer.
If you suspect that your child might be accessing inappropriate Internet content, talk to them about responsible use of the Internet.
If you have been accused of guilt by association – or if you suspect that you may be accused – it is in your interest to take proactive measures.
In the first instance , make sure that your child – if of an age and capability to be able to do so – understands the dangers of visiting sites that contain illegal content. Perhaps even more important is the need for your child to understand the very real risk of being accused of guilt by association. Inform them of the consequences, as well as the legal options available to you if they are wrongly accused. You may also wish to inform school staff of the issue, so they can take reasonable steps to mitigate the chances of offending material being sent to your home computer.
Perhaps the most important tip of all is to ensure that your child is aware of the seriousness of the situation, as well as your resolve to take appropriate action should the worst happen. The awareness that their actions have consequences may be enough to deter your child from visiting inappropriate content.