Whoops, I accidentally hit reply instead of reply to all on this earlier,
thanks Brandon for pointing that out.
On 23 January 2016 at 17:43, Brandon Savage <bran...@brandonsavage.net>
wrote:
> The Code of Conduct, as written, makes no exception for the intent of the
> person involved. This is an important problem, because intent ("mens rea"
> in Latin, for "guilty mind") is typically required to convict people of
> criminal acts in much of the world. For example, you cannot be convicted of
> murder unless you had intent to kill the person (or should have known that
> your actions created the grave risk of death). Our current code makes no
> exception for intent. Instead, "if you broke it, you're guilty".
Not quite. Mens rea as you rightfully point out is one of the two core
elements required to be proved for conviction of the majority of crimes
(The exception being those with strict liability), this does not mean
intent is required as mens rea can be formed of direct intent, indirect
intent, recklessness and negligence. Direct intent would be 'I murdered him
by stabbing him because I wanted to murder him', indirect intent would be
'I stabbed him (and he died) because I wanted to stab someone in the chest'
(Note the lack of wanting to kill, essentially you knew that it would have
that effect for sure, but that wasn't your primary intention) and
recklessness of which is best described by 'Realising there was a risk of
injuring someone by drinking whilst drunk, but carrying on and driving down
my road regardless' (I've only studied UK law but I've tried to abstract
the principles to clarify but I understand other countries may have
differences).
In most modern legal systems different crimes require different levels of
mens rea to be proved. For example murder requires intent (direct or
indirect intent) whereas battery or assault (lesser crimes) can be proved
by recklessness, direct intent or indirect intent.
Therefore it might make sense to have a non-black and white answer to this.
Someone messaging someone else who they don't know with rude and
insensitive comments that cause great insult to that person could be
grounds for me getting in trouble. Applying the reasonable man test (Which
has been described many times in this discussion) you would ask if most
people would realise that sending rude and insulting personal attacks to an
individual they've never met or spoken with before could have the potential
risk to make them feel... unsafe. But then, if they didn't have the direct
intent, they probably shouldn't get the harshest possible punishment if
those same actions had been done with malice.
It's all about finding balance and applying reasonable actions considering
the circumstances. Having a blanket rule on direct intent (which it sounds
like you are suggesting) could be damaging as direct intention is very
difficult to prove and most would just claim they didn't realise it could
be offensive.
--
Michael C
On 23 January 2016 at 17:43, Brandon Savage <bran...@brandonsavage.net>
wrote:
> All,
>
> It's encouraging to see people working hard to improve and expand on the
> proposed Code of Conduct for PHP. The strenuous and passionate debates
> aside, I'm pleased to see so many people working on this together.
>
> I want to propose a scenario that I came across this morning, that might
> work well as a thought exercise for us as a group in considering how we
> would APPLY the Code of Conduct to specific members.
>
> This morning, Gary Hockin posted a pull request to the Doctrine project,
> proposing a rename from "Doctrine" to "Shitty". The full pull request is
> here: https://github.com/doctrine/doctrine2/pull/5626 He then tagged one
> of
> the maintainers personally. It was a master stroke of humor and trolling
> between two friends. The PR was closed as "Cant Fix" due to "licensing
> issues" and "namespace conflicts."
>
> There are several things at issue here:
>
> 1. This was an obvious attempt at trolling the Doctrine maintainers, a
> masterful stroke by a master (and well-known) troll who had no ill-intent.
> But it was still trolling, violating the CoC.
> 2. The vulgarity used to rename the project would generally be considered
> in most circles to be "unprofessional behavior."
> 3. Tagging the maintainer could be construed as a "personal attack" on that
> person's work.
>
> GeeH is well-known and well-respected in the community. There's no doubt
> that in some capacity, he represents the community, especially since he
> speaks regularly at conferences and events. In addition, by reading the
> comments, it's clear that not everyone got the joke at first (see comments
> by "nuxwin" on the thread).
>
> If someone came to the mediation team with a complaint that this pull
> request made them feel "unsafe", how would we as a community respond?
>
> The Code of Conduct, as written, makes no exception for the intent of the
> person involved. This is an important problem, because intent ("mens rea"
> in Latin, for "guilty mind") is typically required to convict people of
> criminal acts in much of the world. For example, you cannot be convicted of
> murder unless you had intent to kill the person (or should have known that
> your actions created the grave risk of death). Our current code makes no
> exception for intent. Instead, "if you broke it, you're guilty".
>
> The second problem here is the fact that all of us probably know that GeeH
> was kidding, and would make that point to anyone who complained. This is
> actually a HUGE problem. Being known to the community actually becomes a
> benefit for people, because their past history is known, and thus they
> might receive more favorable treatment than those we don't know.
>
> Finally, the current Code of Conduct permits any person to complain, even
> if they weren't a party to the original incident. It permits this by not
> explicitly restricting it. Even though it should be (and is to the
> reasonable person) clear that this was a joke, any person in the community
> could complain and have an argument.
>
> I think these are fixable problems. I propose the following:
>
> * The Code of Conduct should specifically state that a person who is not a
> direct party to the alleged incident is not permitted to make a complaint.
> * We should require that any person who is accused of violating the Code of
> Conduct clearly have intent to do so. This is a harder standard to prove,
> but one that should help us from having to deal with edge cases. A death
> threat is a clear-cut case of intent, for example.
> * The Code of Conduct should be modified so that abiding or not abiding by
> it is demonstrable with evidence, taking "feelings" out of it entirely. For
> example, a person shouldn't be in violation of the code because someone
> "feels harassed/trolled/etc", it should be because they're ACTUALLY
> harassed/trolled/etc.
> * The Code of Conduct should bar filing a claim of harassment if harassment
> from both parties towards one another can be demonstrated. This avoids a
> race to the courthouse by one side to punish the other in an argument.
>
> Open to suggestions/comments on this. I'll work on pull requests to
> Derrick's repo over the next couple of days to let folks share their
> thoughts.
>
> Brandon
>
