EX POST FACTO: after the fact

ex post facto

There is a bundle of Latin terms which are tossed around in the legal profession, some of which have been adopted into the regular parlance of American English.   One of those words is ex post facto, which is (literally) defined as “after the fact.”  The fact that it is used regularly in our language does not mean that people understand what it means, however. Let me give you an imaginary example from which we can work:

A man is arrested in 2013 on the charge of jury tampering.  He is accused of having bribed a juror to vote to acquit a woman standing trial in 2009  for negligance, having left her 3 year old child alone when she went to work in the evening.  She was aquitted of the charges and released, although there seemed to be sufficient evidence to convict her.    Now, in 2014, the man, her live-in-partner, is arrested on a charge of breaking and entering, and during his examination he acknowledges that he did bribe the juror back in 2009, and that his girlfriend had, indeed, left the child alone for four hours on the evening of her arrest.  He is remanded to jail and at the time of his trial is found guilty of jury tampering.   The judge sentences him to jail for 10-20 years, the punishment prescribed in 2013 for such a conviction.   However, upon appeal, his lawyer points out that in 2009, when the act was committed, the punishment was only 5-10 years, and asks for the sentence to be reduced appropriately.  He bases his argument upon the principle of ex post facto, in that a person cannot be punished by a sentence which was not in place at the time of his crime. “

Now, let’s be clear.  This is a simplistic story, and I’m not an attorney.  It’s just an illustration, and I hope it helps make the definition of ex post facto somewhat clearer for you.

But, let’s move away from the court room and find ourselves in the living room.

Margaret, a 16 year old daughter of the family, has just come in from an evening with her friends.  It is after midnight when she walks through the door.   Her parents confront her, and the expected conflict arises.   In the end, she is “punished” by being grounded for two weekends.  She objects on the basis that there was no conversation prior to the evening which laid out the circumstances of expectations for her.   She wasn’t told what time to return, and there was no indication of any punishment for using bad judgment in staying out late.  “

There are no “laws” regarding this.  It is strictly a matter of parent/child agreements and responsibilities.  It would appear that there are circumstances on both sides of the argument which apply.   But the question arises…if there were no stipulations of time and punishment in advance, is it fair to assess them ex post facto“...that is…after the fact?  A lot depends upon the prior relationship between Margaret and her parents, and the way in which previous infractions have been dealt with.  Margaret may have a point, in terms of logic.  But if this is a household where autocratic rules apply, and that has been the circumstance prior to tonight, she may have a tough time winning this argument.  She should have expected some kind of retaliation.

You can begin to see that this is not simply a courtroom word.  It has application to everyday life.   There are surely other examples to be cited, some of which are much less stressful, but which arise spontaneously in family life.   The same can be said for the workplace, schools, organizations, and communities.   It happens all the time that those “in charge” want to go back to a prior time to define a violation of something, but want to assess a punishment which did not apply at the time.  Sometimes it is a subtle difference…sometimes it is not so subtle.

Life can be difficult.

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Photo Credit: JSchultz & Associates

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