Upskirting, BitCoin, and Crime, Oh My: Judicial Resistance to Applying Old Laws to New Crimes – What is a Legislature to Do?

Volume 95

Michael Whiteman

As technology continues to advance at a break-neck speed, legislatures often find themselves scrambling to write laws to keep up with these advances. Prosecutors are frequently faced with the prospect of charging a defendant with a crime based on an existing law that does not quite fit the circumstances of the defendant’s actions. Judges, cognizant of the fact that legislatures, and not the judiciary, have the primary responsibility for creating crimes, have pushed back. Judges routinely refuse to convict a defendant if the statute does not fairly criminalize the defendant’s actions. To determine if a defendant’s actions fit within a criminal statute, judges look to the plain meaning of the statute, often relying on dictionaries and other interpretive tools, because legislative histories are scant at the state level, in an attempt to discern if the law covers the defendant’s actions. If the plain meaning will not encompass the “new” crime, judges often send a message to the legislature: by refusing to convict, that message is that it is time to draft a new law. This Article through an analysis of some recent cases, reviews the current state of affairs, looking at how the judiciary attempts to address “new” crimes when defendants are charged under “old” laws. It is hoped that this Article will encourage legislatures to act to curb “new tech” criminal behavior without relying on the courts to try and fit new crimes into old laws. 

Full article available here: