June 10, 2011

Crowdsourced Legal Precedent?

Atkinson Conway & Gagnon is proud of Alaska for many reasons, including the State’s willingness to innovate and be on the cutting edge of important issues. From the use of duct tape in aircraft repairs to proactively banning the use of tasers on bears, Alaska is always pushing boundaries forward. Alaska’s Court of Appeals is no different, as demonstrated by its recent decision in Bates v. State of Alaska, where the Court of Appeals eschewed the dictionary definition of “dating” in favor of the crowd-sourced definition of the term in Wikipedia and the eponymous Bonny’s Dating Blog, by Bonny Albo.

The specific legal issue in Bates was whether the defendant’s prior acts of domestic violence towards his ex-girlfriend were admissible when he was tried for attempting to murder that same ex-girlfriend. Resolving that issue required the Court to determine if the term “dating” as used in Alaska’s domestic violence statute had a “meaningful definition.”

The Court of Appeals began by recognizing that Webster’s New World College Dictionary’s definition could not be used to define the term “dating,” as its definition of “dating” included meeting a business associate or relative if the associate or relative were a member of the opposite sex. Accordingly, the Court turned to a more modern source: Wikipedia, which defined “dating” as “a form of human courtship consisting of social activities done by two persons with the aim of each assessing the other’s suitability as a partner in an intimate relationship or as a spouse.” The Court also relied on the definition of dating contained in Bonny’s Dating Blog, which defined “dating” as “an activity two people share together with the intention of getting to know each other better on a potentially romantic level.”

Unfortunately, the Court did not disclose the search history that led to these sites, or identify the definitions and sites that it declined to rely upon. For the curious, the State’s version of the Freedom of Information Act is located here.

Although odd at first glance, the Court’s explanation for its decision to rely, at least in part, on Wikipedia is cogent. The court recognized that in today’s society, there is a fluidity to cultural norms, such that relying on more up-to-date sources of information may be necessary in certain cases:

people can have quite different views as to what the word “dating” means – in large part, because the meaning of this word has been shifting in the past decades as our society has experienced changes in the relations between the sexes and the role of marriage as an institution.

In these circumstances, one could plausibly argue that Wikipedia offers one of the most accurate gauges of what the word “dating” now means in contemporary culture. The articles in Wikipedia are open to editing by essentially anyone with Internet access. The process of public input means that Wikipedia articles are subject to a type of “social Darwinism”.

The Court is correct. In today’s world, where seismic cultural shifts can occur in years, rather than generations, Courts must be willing to expand their horizons and look to new sources of information and understanding as to what constitutes a family, a relationship, or, as was the case in Bates, dating. And so once again, Alaska demonstrates a forward-looking approach, one that is grounded in the law and logic, but recognizes that sometimes change occurs so quickly that you need to look beyond traditional sources.

Domestic violence is a serious issue in Alaska. That is why Atkinson Conway & Gagnon works with the Alaska Network on Domestic Violence and Sexual Assault (ANDVSA) to provide pro bono legal assistance to abused women who are seeking long-term protective orders. The work is rewarding, and necessary. These are women who, through no fault of their own, are put in horribly difficult situations and need assistance with the legal system at a critical time. If you are interested in assisting ANDVSA, please contact Christine Pate at 907-747-7545 or give us a call at 907-276-1700. We would be happy to discuss our experience working the ANDVSA, the types of cases we have been involved in, and time and effort required.