The Legal Uses of Magic
Apr. 26th, 2005 09:05 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
mishalak-by Gavran Svoibozhevich-
I'm somewhat frequently asked what a magic user can get away with as someone who both works for the law in this area and is somewhat well known for being irreverent towards the state. That puts me in a tricky position as if I give legal advice I'm violating all sorts of legal codes, especially if I give advice that violates the letter of the law.
Also I don't like the attitude of wanting to "get away" with something. I think the law often doesn't conform to what is ethical behavior, but that isn't a license to do as you please. Crowley was not someone that should be imitated, especially since he would have been a lot worse if he'd had real power.
But someone needs to describe how the law is actually practiced in the United States as opposed to how it is in theory. I hope the wide circulation of this description will do more good than harm and that it will encourage both the users of magic and the general public to discus to what extent it should be regulated.
What is criminal or not is part of a dance between courts, state, and federal law. Most of which has been written and rewritten in the last century as the courts more skeptically examined cases on the malicious use of magic. Legally speaking there is no formal crime of "witchcraft" in English common law and if there was it was moved to the realm of formal law by three successive statues prior to the revolution eventually establishing the Courts of Necromancy in 1735.
Nonetheless from the time of the revolution almost to the present day some courts have accepted arguments that the practice of "witchcraft" or "diabolism" to be crimes under common law. Not to mention the numerous times when those suspected of "witchcraft" were lynched in the traditional manners of either hanging or burning. In places where such actions continue to go unpunished at least half the time such as Utah, Alabama, Mississippi, and Louisiana it must be regarded that the practice of magic is de facto illegal even though on the books it is only illegal to commit some other crime using it.
Aggravated Crimes
Everywhere in the US a crime is still a crime even if magic is used in the act. Experts on the subject will be used in the prosecution just as scientific experts are at trial though depending upon the judge actual practitioners of magic may or may not be allowed. Almost every instance of the use of magic in the commission of another crime will be considered an aggravating factor allowing or requiring extra penalties; the only exemptions are some misdemeanors in a few states. In about half of states those extra penalties are waived if the action can be fully put right by the magic user. Generally this is not the case in the Lower Midwest and South, plus Utah.
Mind Control and Illusions
The creation of illusions is considered harmless outside Southern states, but in the South it is often ruled to be illegal mind control if anyone complains. As such while not technically illegal the creation of even the most minor of visual or mental effect should be considered illegal. In other states there are often laws on the books regarding the notification of the use of illusionary magic in stage shows though they are only enforced with any regularity in Arizona, Indiana, New Hampshire, Ohio, and Utah. Also using magic to frighten people is illegal, though after much trouble courts have usually considered it permissible to use fright to protect private dwellings. It is also illegal in all cases to use magic to control a person with penalties similar to false imprisonment, this includes "love spells". Courts almost never take a light view of even pretending to lay a love spell on someone, though it isn't perfectly enforced by any measure.
Raising the Dead
If we're talking physical raising of deceased humans that's desecration of a corpse in most places. Except that with the permission of families or the relevant authorities many states now allow the raising of the dead to get information. It is allowed in almost all states to contact ghosts or evoke them. The exceptions are states that had trouble with fake mediums during the 19th century however it is very rare that these laws are enforced anywhere, much like laws on adultery.
Trafficking in Malevolent Spirits & Creatures
The fierce debate upon if evil spirits or creatures are summoned or created only marginally affects the legal status of their actions. If people die or are harmed it doesn't matter if it was caused by a magic user directly or if somehow the entity acted independently as it is almost always impossible to tell which was the case. As such NEVER summon or create, whichever you think to be the case, anything that could kill a person. If you wish to experiment in this area I strongly recommend joining a licensed institution in one of the eight states that license such research. In those states you'll probably only be strongly punished if something goes wrong rather than having a warrant sworn out for you execution. I know of a few people who live or practice so far away from anyone else that even if something has gone it is exceedingly unlikely they could harm anyone. As such while they may be technically violating the law at times there is no proof, habius corpus and all that. If no one has been harmed there is no proof they raised a harmful entity.
The Demigod Law
In 1801 President Jefferson signed one of the few longstanding federal laws on magic. Commonly called the Demigod Law it makes the use of magic to establish personal worship as a godhead illegal as a fraud. It technically only applies in interstate situation, but given the mobility of today's society as a practical matter in interstate portion would be easy to prove and it also covers federal lands and territories. It was mainly aimed at the time at the Indians, though it was also intended to prevent the establishment of foreign cults in America. Court cases have been inconclusive, as the last time it was challenged the Supreme Court decided to make a highly technical ruling. It is still frequently used, but usually only in combination with charges on mind control to break up cults.
This covers almost all legal issues with magic. Free for distribution.
Note: this is background for a fictional world I'm building up.
I'm somewhat frequently asked what a magic user can get away with as someone who both works for the law in this area and is somewhat well known for being irreverent towards the state. That puts me in a tricky position as if I give legal advice I'm violating all sorts of legal codes, especially if I give advice that violates the letter of the law.
Also I don't like the attitude of wanting to "get away" with something. I think the law often doesn't conform to what is ethical behavior, but that isn't a license to do as you please. Crowley was not someone that should be imitated, especially since he would have been a lot worse if he'd had real power.
But someone needs to describe how the law is actually practiced in the United States as opposed to how it is in theory. I hope the wide circulation of this description will do more good than harm and that it will encourage both the users of magic and the general public to discus to what extent it should be regulated.
What is criminal or not is part of a dance between courts, state, and federal law. Most of which has been written and rewritten in the last century as the courts more skeptically examined cases on the malicious use of magic. Legally speaking there is no formal crime of "witchcraft" in English common law and if there was it was moved to the realm of formal law by three successive statues prior to the revolution eventually establishing the Courts of Necromancy in 1735.
Nonetheless from the time of the revolution almost to the present day some courts have accepted arguments that the practice of "witchcraft" or "diabolism" to be crimes under common law. Not to mention the numerous times when those suspected of "witchcraft" were lynched in the traditional manners of either hanging or burning. In places where such actions continue to go unpunished at least half the time such as Utah, Alabama, Mississippi, and Louisiana it must be regarded that the practice of magic is de facto illegal even though on the books it is only illegal to commit some other crime using it.
Aggravated Crimes
Everywhere in the US a crime is still a crime even if magic is used in the act. Experts on the subject will be used in the prosecution just as scientific experts are at trial though depending upon the judge actual practitioners of magic may or may not be allowed. Almost every instance of the use of magic in the commission of another crime will be considered an aggravating factor allowing or requiring extra penalties; the only exemptions are some misdemeanors in a few states. In about half of states those extra penalties are waived if the action can be fully put right by the magic user. Generally this is not the case in the Lower Midwest and South, plus Utah.
Mind Control and Illusions
The creation of illusions is considered harmless outside Southern states, but in the South it is often ruled to be illegal mind control if anyone complains. As such while not technically illegal the creation of even the most minor of visual or mental effect should be considered illegal. In other states there are often laws on the books regarding the notification of the use of illusionary magic in stage shows though they are only enforced with any regularity in Arizona, Indiana, New Hampshire, Ohio, and Utah. Also using magic to frighten people is illegal, though after much trouble courts have usually considered it permissible to use fright to protect private dwellings. It is also illegal in all cases to use magic to control a person with penalties similar to false imprisonment, this includes "love spells". Courts almost never take a light view of even pretending to lay a love spell on someone, though it isn't perfectly enforced by any measure.
Raising the Dead
If we're talking physical raising of deceased humans that's desecration of a corpse in most places. Except that with the permission of families or the relevant authorities many states now allow the raising of the dead to get information. It is allowed in almost all states to contact ghosts or evoke them. The exceptions are states that had trouble with fake mediums during the 19th century however it is very rare that these laws are enforced anywhere, much like laws on adultery.
Trafficking in Malevolent Spirits & Creatures
The fierce debate upon if evil spirits or creatures are summoned or created only marginally affects the legal status of their actions. If people die or are harmed it doesn't matter if it was caused by a magic user directly or if somehow the entity acted independently as it is almost always impossible to tell which was the case. As such NEVER summon or create, whichever you think to be the case, anything that could kill a person. If you wish to experiment in this area I strongly recommend joining a licensed institution in one of the eight states that license such research. In those states you'll probably only be strongly punished if something goes wrong rather than having a warrant sworn out for you execution. I know of a few people who live or practice so far away from anyone else that even if something has gone it is exceedingly unlikely they could harm anyone. As such while they may be technically violating the law at times there is no proof, habius corpus and all that. If no one has been harmed there is no proof they raised a harmful entity.
The Demigod Law
In 1801 President Jefferson signed one of the few longstanding federal laws on magic. Commonly called the Demigod Law it makes the use of magic to establish personal worship as a godhead illegal as a fraud. It technically only applies in interstate situation, but given the mobility of today's society as a practical matter in interstate portion would be easy to prove and it also covers federal lands and territories. It was mainly aimed at the time at the Indians, though it was also intended to prevent the establishment of foreign cults in America. Court cases have been inconclusive, as the last time it was challenged the Supreme Court decided to make a highly technical ruling. It is still frequently used, but usually only in combination with charges on mind control to break up cults.
This covers almost all legal issues with magic. Free for distribution.
Note: this is background for a fictional world I'm building up.