Probably yes, on the grounds that the cheering tends to encourage the criminal and thus constitutes “abett[ing].” “An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense.” People v. Avila, 38 Cal. 4th 491, 564 (2006).
This having been said, convictions based on solely encouragement-by-cheering, without any more tangible help, are apparently rare. Unless I’m mistaken, this theory was tried as to some bystanders in the infamous New Bedford barroom rape case, but they were acquitted. And though I think there’s no legal bar to such a conviction, I suspect that it’s often hard to pin down just who was cheering, and likely sometimes hard to persuade a jury to convict based on cheering alone.
josh says:
Didn’t you see The Accused with Jodie Foster and Kelly McGillis?
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November 3, 2009, 5:51 pmtroll_dc2 says:
What about ratification after the fact? If you say “good job!” after a rape, is that a crime? You did not encourage the illegal act while it was occurring. So you did not abet it. All you did was express support for the actor. In labor law, a union can be liable for ratifying illegal conduct, but this is a statutory matter (Sec. 6 of the Norris-LaGuardia Act). Can the pricniple carry over to other scenarios? I doubt it.
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November 3, 2009, 6:20 pmMatthew says:
Cheering about a series of crimes on a website was essentially the basis for the stalking convictions in United States v. Fullmer out of the Third Circuit last month.
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November 3, 2009, 6:23 pmS says:
So it’s plausible that people cheering on Al Pacino’s Sonny Wortzik in Dog Day Afternoon were guilty of ‘abetting’.
Could would it be interpreted as protected speech if the police are already there?
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November 3, 2009, 6:35 pmStrict says:
I usually cheer when a drunk spectator at a sports event interrupts the game by running around the field like an idiot. It’s funny. The guy always gets carted off by police — I’d assume there’s usually a criminal trespass charge that follows.
And these sports fans certainly do it for the attention and the cheers.
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November 3, 2009, 6:38 pmMalvolio says:
You think so? I have to disagree. He has permission to be in the stadium. He doesn’t have permission to be in some parts of the stadium, but that would be a civil matter between him and the owner, who would have to eject him and then sue. Lori Drew not withstanding, failing to obey the terms of a contract isn’t a crime.
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November 3, 2009, 7:46 pmSplunge says:
What if the bystanders distribute their cheers impartially, on the strict basis of demonstrated competence and artistic style, to criminal and victim alike? Like Olympic judges?
Masterful use of the choke-hold, sir! You’re winning!
[audience roars in surprise]
My word! Oh very well played, ma’am! Excellent placement of the boot!
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November 3, 2009, 8:15 pmThe Volokh Conspiracy » Blog Archive » More on Bystanders Who Cheer on a Criminal says:
[...] his post below, Eugene asks whether a bystander who cheers on a criminal can be criminally liable as an [...]
David Schwartz says:
Once the crime has been committed, someone who cheers cannot seek to bring it about. So I don’t see an issue with cheering someone who has committed a crime or is in the process of committing one (but where the crime itself is already complete).
However, if one has the requisite intent and encourages someone to commit crimes he or she has not yet committed, I see no reason that wouldn’t support an aid and abet conviction.
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November 3, 2009, 9:24 pmStrict says:
“He doesn’t have permission to be in some parts of the stadium, but that would be a civil matter between him and the owner, who would have to eject him and then sue. Lori Drew not withstanding, failing to obey the terms of a contract isn’t a crime.”
So why the arrest by police? Maybe you are right though, if most jurisdictions lack such a crime.
A quick Google yields some “criminal trespass at sports events” statutes.
NY statute
Criminal trespass charges for tennis fan at US Open
Criminal trespass charges for streaker at Mets game
Oregon statute.
Ohio
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November 3, 2009, 9:26 pmRicardo says:
I was able to find several cases of people arrested for criminal trespass who rushed the field during a sports event. The field is pretty clearly off-limits to fans, just as surely as various offices marked “authorized persons only” are. Indeed, stadiums station security guards at entrances to the field exactly to deter people from entering the field unless they have a right to be there. The Lori Drew case is more analogous to someone who, say, smuggles alcohol into a stadium or uses profanity or does something else clearly forbidden by the “house rules.” In those kinds of cases, I believe you can be asked to leave and you are only subject to arrest if you refuse or resist.
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November 3, 2009, 10:23 pmLimiting Free Speech (38): Cheering on a Criminal « P.A.P. Blog – Human Rights Etc. says:
[...] Eugene Volokh, normally very hesitant to allow restrictions on free speech, says that prosecution should be possible on the grounds that the cheering tends to encourage the criminal and thus constitutes “abett[ing].” “An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense.” People v. Avila, 38 Cal. 4th 491, 564 (2006). (source) [...]
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December 2, 2009, 7:13 pm