I don’t play one on TV, but I’m a lawyer. A criminal defense lawyer, in Washington State as a matter of fact. As such, I read today’s IGOTD with great interest. (And if you haven’t read Brad’s post, read it before you read here any further.) With my lawbooks handy, I thought I might give you a lawyer’s take on how our IGOTD may have really f–ed up. Or maybe how he didn’t.
[Note: none of this constitutes legal advice regarding any individual situation, and none of it is applicable outside of Washington State in any way, except to satisfy our morbid curiosity about this sordid affair.]
Washington’s Definitions of Criminal Assault
Washington State has a rather expansive definition of ‘Assault’, which doesn’t require that any injury be inflicted or physical harm be caused. An assault is defined as (1) an attempt, with unlawful force, to inflict bodily injury upon another [attempted battery]; (2) an unlawful touching with criminal intent [actual battery]; and (3) putting another in apprehension of harm whether or not the actor intends to inflict or is capable of inflicting that harm [common law assault].
Mr. Gooden appears to be charged with Assault under the third prong, for allegedly ‘putting another in reasonable fear of imminent harm’. The degree of Assault now depends on the injuries, the intent, or the instrument used.
1st-Degree Assault involves inflicting or intending to inflict great bodily harm (losing a limb, or nearly dying) or the use of a firearm or deadly weapon. 2nd-Degree Assault involves the use of a deadly weapon or ‘substantial’ bodily harm (disfigurement, a broken bone, or injuries that just hurt like hell). 3rd-Degree Assault involves negligently causing harm with some kind of weapon, and 4th-Degree Assault involves no weapons at all.
If (and this is a big if) Mr. Gooden acted as the police claim, he could be looking at a minimum of nine years in prison for 1st-Degree Assault (with a firearm) plus a possible five-year enhancement for the use of a firearm. Even though he has no prior criminal record. If Gooden’s convicted of 2nd-Degree Assault–the charge that seems to be on the table—he faces a six-month minimum jail sentence with a possible three-year enhancement for the use of a firearm.
Any felony results in the loss of gun rights, and any serious violent felony means you lose them forever. Nothing short of a full pardon by the Governor can restore them then.
Brad mentioned the ‘Castle Doctrine,’ which I’m proud to say is already the law of the land around here. Two fairly recent decisions by our State Supreme Court have held that “The law is well settled that there is no duty to retreat when a person is assaulted in a place where he or she has a right to be.” This means your crib, your ride, and even your place in line at the hot-dog stand.
The Castle Doctrine may not play an important part in this case, however.
Statutory Rape and the Age Of Consent
Mr. Gooden may have the theoretical right to stand his ground. But to stand his ground against what? Infuriating as it surely is to find two naked teenage boys rolling around with one’s sixteen year-old daughter, it’s not illegal. As long as all the parties are sixteen years old, there’s nothing illegal about teenagers gettin’ it on in the Evergreen State. There are some complex rules involving the difference in ages between participants, but they don’t apply here.
Washington’s age of consent is sixteen. So Gooden wasn’t protecting his daughter from statutory rape. And since the laddies were invited into the house by a resident (the daughter), Gooden wasn’t protecting his home against a burglary or trespass either. When you pull a gun, you gotta be defending yourself or someone else from imminent serious harm. If you’re not, under Washington law, you’re just another perp with a gun.
It could certainly be arguable that Gooden wasn’t aware of the boys’ ages, at least initially, and that for a split-second he may have thought that his daughter was being gang-raped. This perception, however, wouldn’t have lasted very long once the daughter ‘fessed up.
This is pure speculation in a case like this, since Mr. Gooden doesn’t seem to claim that he thought the two aspiring Lonely Island singers were too old to be rolling around with his daughter. Nope, he apparently just thought they were too naked.
Facts: The Last Refuge Of The Scoundrel
So Gooden might not have the greatest ‘legal’ defense at his disposal, but he’s still got a good ‘factual’ defense.
With no physical evidence of gunplay, the felonious aspects of this case devolve into a classic “He Said/ They Said” swearing contest. Or lying contest, depending on your level of cynicism. If you believe the nekkid teens, Mr. Gooden waved his gun around in a nearly-homicidal rage after finding them in flagrante delicto with his daughter. And he slapped the hell out of her too, which is the basis for the 4th-Degree Assault charges.
If you believe Gooden and his daughter, he put his gun away first and then had a minor tantrum while he searched for the other Lothario. If he slapped his daughter on the arm, this could be an entirely justifiable use of force under the ‘Parental Discipline’ exception. If he slapped her 50-100 times, this would not. But, as Brad pointed out, there’d better be some photos of the swelling and bruising or else the nekkid teens are going to look like complete liars.
Do We Really Need “The Moral Of The Story”?
No. We already know it, and none of us would ever want to be in Mr. Gooden’s shoes in any part of these sordid events. If the allegations are true, they constitute a near-textbook example of what not to do with a gun.