10 Pages Posted: 3 Jul 2013
Date Written: 1999
Some Thoughts on the Conduct/Status Distinction critically examines the common perception that the law may criminalize and regulate acts but never status. In this piece, Colb suggests that the conduct/status divide is artificial and masks a more important divide. Colb notes that differences in status can be an important feature of determining when the same act should be punished and when it should be excused. Some take the position that what makes an act the proper subject of punishment is its tendency to manifest a bad character. Though judging people on the basis of racial status is invidious and indefensible, the law can and does judge people on the basis of their character. The anti-gay military bans, for example, effectively and invidiously criminalized the status of being gay – while an act of gay sex did not necessarily disqualify a person from military service (under either policy), a gay orientation (or identity, under “Don’t Ask, Don’t Tell”) did. The sexual dalliances of President Clinton while in office were deemed disqualifying or not, based on whether the people making the judgment believed that these actions manifested a bad presidential character. Outside the context of sexual status and conduct, the law of evidence betrays our tendency to judge people on the basis of character by expressly prohibiting jurors from considering evidence of a criminal defendant’s criminal propensity in determining guilt or innocence. To ask jurors to think only about the defendant’s actions and not about his propensity or character (despite its relevance to determining actions) is to fight a strong contrary human inclination to pay close attention to character in passing judgment. Much of the time, it is character that animates human actions and gives them legal and moral meaning. The primary battle, Colb argues, may therefore be in deciding not whether to take status into account but instead in deciding what sorts of status ought to “count” in judging actions, and which ought to be legally irrelevant.
Suggested Citation: Suggested Citation
Colb, Sherry F., Some Thoughts on the Conduct/Status Distinction (1999). Rutgers Law Review, Vol. 51, No. 977, 1999. Available at SSRN: https://ssrn.com/abstract=2287953