Legalities and the Black Ram

I just came across this great September post from the UChi Profs’ Blawg:

Othello is generally considered to be a tragic figure, not a villain. The true evildoer in the play is the manipulator behind the scenes: Iago. While many debate whether or not Othello should truly be considered culpable for the killing of Desdemona, few dispute the depravity of the man who consistently provoked Othello by feeding him false information about Desdemona’s infidelity.

Yet it proves surprisingly difficult to find a legal theory which would let charges stick on Iago. By contrast, he appears to have carefully calibrated his participation in order to minimize his legal exposure. In the England of 1600, conspiracy liability did not exist as it does today, leaving a hypothetical prosecutor only with accomplice liability. Moreover, because Iago was not present for Desdemona’s killing (even constructively, such as by standing as a lookout), he can only be charged with being an accomplice before the fact–someone who aided or encouraged the commission of the crime, but was not present for its commission.

Securing even this liability proves surprisingly difficult. Though the text of the play provides repeated examples of what seem obvious examples of Iago “encouraging” Othello to kill his wife, in actuality Iago is for the most part quite careful with his words. While he tells tales calculated to stir Othello’s ire–tales that are intended to provoke him to murder–until very late in the day Iago does not actually specifically¬†endorse killing Desdemona. It is only towards the very end, when Othello informs Iago that he is planning to poison Desdemona, that Iago crosses the line by telling him to “Do it not with poison, strangle her in her bed.” Though it is an open question, it is quite possible that without that critical line, the absence of an explicit endorsement would have shielded Iago from culpability.

So why did Iago make this seeming misstep, advising strangulation instead of poison? The answer again lies in the scope of his legal liability. During Shakespeare’s time, an accomplice can only be charged with a crime that the principal was convicted of. Killing someone by poison is murder as a matter of law–it is in itself proof of an intent to kill. By contrast, strangulation leaves upon the possibility that Othello could only be convicted of manslaughter — a killing that occurred during a “sudden occasion”. Though the audience knows that it is difficult to call Othello’s killing sudden (what with the brooding and the dialogue with Desdemona), it is quite possible that a jury without our God’s-eye view could be convinced that Othello killed Desdemona in the heat of anger upon learning of her adultery.

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