[HPforGrownups] Re: Expelling Draco?

[T.M. Sommers]

No: HPFGUIDX 71125

Alexandra Y. Kwan wrote:
> Hello,
> 
> T.M. Sommers:
> 
>>Anything capable of causing injury, even if that is not its 
>>primary or usual purpose, can be a deadly weapon in the eyes of 
>>the law.
> 
> American law; American *Muggle* law. They are *not* on USA soil, unless 
> you haven't noticed. Anyway, I agree that it wasn't like taking a 
> swing, but more like throwing a stone or even a butter knife. 

We don't know much about magical law, so we have to base our 
theorizing on muggle law.  As for it being American, the law of 
attempts dates back to before American and English law separated. 
  Of course, there are differences in detail in different 
juridictions, but the basic idea applies throught the common-law 
world (and probably the rest of the world, too).

 > I don't
> quite think you can make it stick with attempted murder even if we're 
> talking about USA Muggle law. Assault maybe.

Maybe not, but it's worth a try.

>>That he missed is no excuse; that is the purpose of criminalizing 
>>attempts.  That he is a schoolboy does not immunize him from the law.
> 
> No, but you don't try minors the same way you do adults; you don't even 
> arrest and/or charge them with crimes the same way you'd adults, 
> especially if their parents are rich and powerful. Even if you make it 
> stick, the worst would be community service.

It depends greatly on the exact age of the defendant and on the 
nature of the crime.  And juveniles can be imprisoned.  Since the 
only wizard prison is Azkaban, that's where their juvie hall must 
be, too.

The wealth and power of the defendant's parents should make no 
difference.

> Hm, wonder what in the wizarding world would be considered community 
> service...
>  
>>Here, for example, is the definition of "deadly weapon" in the 
>>New Jersey criminal code: '"Deadly weapon" means any firearm or
>  
> Perhaps an example of British law might be more appliable here, despite 
> its, er, Muggle-ness.

Yes, but I used NJ because I am familiar with it, and because I 
know where to find it.  It is a typical example of a codification 
of the common law, though.

> I mean, it doesn't matter whether we're talking about the ideal or 
> the 'reality' of the wizarding world. It's already obvious that they 
> have different laws from ours (ours as in USA law). Even if we're 
> talking about what should be done, let's stick to what laws the 
> wizarding world has (and if we're talking about what's actually going 
> to happen, the whole discussion is pointless, then, since Draco would 
> never have been charged, (which is exactly what happened)); or if 
> you're going to use Muggle laws as examples, let's stick to British 
> laws, 'cause otherwise, the whole point is moot, really.

Much in the wizarding world is analogous to the real world.  In 
the absence of specific information, we have to base our 
discussions on such analogies.

As for using British law, it would be better, but I don't know 
how to find it.  As far as I know, British statutes aren't even 
codified (Australian statues definitely are not).  I don't even 
know whether common-law crimes have been superceded by statutes.

>>Draco isn't close to being a saint.
> 
> No, but nor is he the serial killer/criminal you're painting him to be. 
> For goodness sake, the boy is 15, let up grow up to adulthood before 
> making your final judgement. Or, better yet, let's wait until all the 
> books come out first.

Part of the reason Draco, and Dudley for that matter, are the way 
they are is that they have been allowed to do things like zap 
people with their wands from behind, and suffer no consequences 
for it.  There is no reason to believe that, in the absence of 
such consequences, he (they) will not continue as they have been 
until now.  If he changes, fine, but until then he is a menace 
who needs to be locked up.