Snuff Online

A Friday the 13th topic: snuff films

Snuff films, as you may know, are films that show someone being murdered. Unlike video that inadvertently captures a murder, a snuff film is made deliberately; the murder is the purpose and the centerpiece of the film.

Some definitions say a snuff film has to be made for profit; for my purposes here, a profit motive is irrelevant.

What I want to analyze is the legality, or illegality, of “publishing” a snuff film online.

You may have read about the video recently posted to YouTube: It showed a man tied to a chair being beaten and interrogated about killings he eventually admits, after which he is beheaded on camera. This is apparently an installment in a series of videos being posted by Mexican drugs gangs who are waging an online war of intimidation.

YouTube reportedly removed the video after it was brought to their attention and posted a notice saying it violated the site’s terms of use. YouTube’s Community Guidelines say “graphic or gratuitous violence is not allowed.”

This post is not about YouTube. It is about the legality, or illegality, of posting a snuff film – a film that premeditatedly records the murder of a human being – online. This is not an issue we have ever had to address because we – the general media-consuming public – have never encountered a snuff film. Some have claimed they don’t exist, that they’re apocryphal. I’ve always doubted that. Life is cheap enough in various corners of this and other countries that I see no reason why a snuff film could not, and would not, be made.

Publicizing one, though, is a different issue: Prior to the rise of the Internet it would neither have been possible nor intelligent to distribute a snuff film. Media outlets would not have touched it, and distributing it would only have been asking for law enforcement to go after any- and every-one involved in its creation.

Murder

Anyone involved in creating a snuff film is liable for murder. Assume the YouTube beheading video had been filmed in the U.S. and that U.S. law enforcement tracked down those involved in its creation. The person (or persons, I’ve only seen parts of the video) who actually beheaded the man is a murderer, pure and simple. In case anyone does not know, law defines murder as purposely taking the life of another human being. Case closed: The video records what happened, and even a good defense lawyer won’t be able to convince a jury that the perpetrator “accidentally” or “innocently” beheaded the victim, at least not given the descriptions I’ve seen.

What about the others . . . the people who were present, filming and otherwise assisting with the murder and with its being recorded? They, too, are liable for murder, though on a different theory.

In law, you can be liable for a crime either as a principal (the killer, in this instance) or as an accessory to a crime (murder, here). Accessories are people who either (i) facilitate the crime by, say, tying up the victim or providing materials to be used in committing it; or (ii) encourage the commission of the crime. The person or people who recorded the beheading would be liable for murder, even if this is “all” they did, because the law would find that they encouraged its commission. The level of encouragement that suffices to hold someone liable as an accomplice does not have to be, as we say in law, the but-for cause of the crime; that is, it does not have to be the cause of the crime. Law does not want people playing any role in promoting the commission of crimes, so even a pretty low level of encouragement – such as videotaping the crime with the perpetrator’s knowledge – would qualify.

Okay, these people are easy. They participated, in various ways, in the commission of the crime and therefore helped set it in motion and bring it to its culmination. That, in law and in common sense, makes them liable for what happened.

Later

But what about people who come later, after the murderhas been committed and it is too late to stop it, but who “publish” the video of the crime? Do they bear – should they bear – any criminal liability for the crime?

They did not commit the murder, so they can’t be directly liable for it. They weren’t there when it was committed, indeed, probably knew nothing about the murder until after it was committed, so they can’t be liable as accomplices. As I noted above, the premise on which we hold accomplices liable is that they contributed to the commission of a crime; you can’t contribute if you weren’t there and knew nothing about what was going on until after it had already happened.

There is a related concept called “accessory after the fact,” but that only applies to people who help a criminal escape after the criminal has committed the crime. That obviously would not apply here, since showing the crime could, at the very least, help identify the perpetrators and bring them to justice.

All of the doctrines we have that impose criminal liability only operate prospectively, that is, they only apply to conduct that occurs before a crime is committed and that either actually contributed to the commission of the crime or was intended to do so. (You can be an accomplice if you try your best to facilitate the commission of a crime, but don’t succeed . . . if, say, you show up with the murder weapon but the murderer has already left and uses a different weapon. The law says you tried, so you’re an accomplice.)

That’s only common sense. As I said above, things you do after a crime has already been committed can’t possibly have contributed to its commission.

So, if snuff films were to start showing up online (which I most certainly hope does not happen), we’d need to come up with a different theory to impose criminal liability on those who were “publishing” them . . . if, of course, we thought that was a good idea.

Policy

Do you think that’s a good idea? Do you think we should make it a crime to post snuff films online?

If a U.S. jurisdiction were to do that, the law would certainly be challenged as violating the First Amendment. I’m not going to get into First Amendment issues here, though, because I have enough to do without that.

I’m speculating about the possibility of criminalizing the online publication of a particular type of crime that has already occurred: an orchestrated, intentionally-filmed homicide. Opponents of such a law might point out that television and online news outlets show, and have shown, films of other crimes being committed and that this has never given rise to calls for criminalizing these broadcasts.

Proponents of such a law would argue that a real snuff film – even a not-for-profit snuff film like the one that just surfaced – is different. They would argue that the filming is itself an integral part of the crime being committed, that the entire purpose of a snuff film is to memorialize the act. Those who would support criminalizing the online distribution of snuff films would conclude that if we do not criminalize the distribution of snuff films we are not only playing into the filmmakers’ hands – giving them the fame or whatever else it is they wanted – we are also doing something even more harmful.

They could argue that letting these films be distributed online could encourage the production of other, similar films. That is, the proponents of criminalizing the online (or whatever) distribution of snuff films could argue that the act of “publishing” such a film can, in effect, do what accomplices do – it can encourage someone to commit a crime. Now, in this context the encouragement would not be focused on the commission of a specific crime as it has always been in the real-world; it would be a more general, global act of encouragement.

The opponents of criminalizing the distribution of snuff films could counter with the argument that this goes too far . . . that we do not, and cannot, criminalize everything that has a generalized potential to encourage someone, somewhere, to commit a crime.

This may seem an irrelevant, unnecessary train of thought, since snuff films have never publicly surfaced and have never been publicly distributed . . . at least not until that brief time period while the Mexican video was on YouTube. But one could, quite rationally, dismiss that as an aberration.

I hope it is. I like cyberspace. I like cyberspace with its variously creative, entertaining, obnoxious, disgusting, frightening, depressing, fascinating content. I, personally, don’t want to see it cut back, restrained and civilized. I will not, though, be surprised if the snuff film issue crops up again . . . and in a domestic context that makes it more difficult for us to ignore.

Much of the online content is currently being filtered in an ad hoc way to conform to certain standards of what the public is deemed to find acceptable. A few years ago, there was a furor because a U.S. website posted the video of reporter Daniel Pearl’s being beheaded. The site operator invoked the First Amendment as the reason for posting the video in an argument I, for one, could buy; this was a record of a past crime, of something we may not want to see but that had happened to an American because he was an American. There is a political context there, which I think justifies the invocation of the First Amendment.

The online filtering etiquette will probably develop cracks as things go along, and tend to degrade . . . which means we may very well see a site that hosts a snuff film, or two, or three, one of these days. If that happens, I will be curious to see how we react as individuals and how, if at all, the law reacts.

Happy Friday the 13th.