Everywhere you turn, there’s no escaping the 100 year commemoration of the ill-fated voyage of the Titanic. The film is back in the theaters—in 3D no less. There are television specials and new books coming out every day this week. And Congress is passing a federal criminal law to protect the sunken ship. The latter fact might be more confounding than the reasons why “Rose” tossed her gigantic diamond necklace into the ocean at the end of the Oscar-winning 1997 film.
Former Democrat Presidential Candidate and Senator John Kerry (D-MA) is sponsoring S. 2279: R.M.S. Titanic Maritime Memorial Preservation Act of 2012. This bill makes it a federal crime, punishable by up to five years imprisonment, to disturb, remove or injure Titanic property; engage in activities that threaten public safety; sell, purchase, barter, or import Titanic property, including human remains; or to enter the hull of the sunken vessel.
There is no denying that the “right thing to do” is to try to protect the site for historical reasons, as well as out of respect to the hundreds of people whose graves are in and around the ship. But like many instances of federal overcriminalization, the feel-good story makes for bad law.
One problem is that the penalty is unnecessarily high. Similar laws, such as the Archaeological Resource Protection Act, provide for only a one year maximum term of imprisonment. The same goes for other statutes that concern ruins and potential grave sites.
It is not as though there are not significant civil penalties that can be attached to have an effective deterrent. In fact, the bill provides for an administrative penalty that can result in a $250,000 per day fine for each violation. If that penalty is not paid, civil judicial penalties can result in a fine of up to $500,000 per day.
The other problem is the lack of adequate mens rea (criminal intent) terms. The only intent language used in this bill is “knowingly,” and it is attached only to the penalty provisions. As outlined in the Without Intent report, a separation between the intent language and the prohibited conduct often results in weak intent protection for the accused. There are some activities prohibited in this bill, such as entering the hull of the ship, which would easily display requisite intent. But what about the individual who, on dry land only, trades in property that comes from the Titanic? “Knowingly” is an inadequate protection for accidental conduct.
Yet there is an even more disconcerting aspect of this legislation—timing. The original legislation to protect the Titanic site was passed in 1986, a year after the wreckage was discovered. The legislation has not been amended since then. Is there any reason to enhance the protection already on the books? Or is this simply a bill that has been proposed to dovetail with the 100th anniversary?
All that leads to the biggest question: Why? The Titanic was an English passenger liner (Hint: It is the RMS Titanic, not the USS Titanic) that sank in the North Atlantic a century ago. Unemployment is at 8%; the federal government is drowning in red ink (that is, except for the GSA, which seems to have money to burn); we still at war half-a-world away; Iran is trying to develop nuclear weapons; North Korea is threatening a provocative rocket launch; and so forth. If this bill is what Members of Congress think is important, then I fear they are rearranging deck chairs on, well, you get the idea.