Based in Sydney, Australia, Foundry is a blog by Rebecca Thao. Her posts explore modern architecture through photos and quotes by influential architects, engineers, and artists.

Property Rights and the Brian Banks Rape Case of 2002

Property Rights and the Brian Banks Rape Case of 2002

            I was listening to a recently started podcast series from Skyler Collins over at everything-voluntary, and in it, he was talking about the concept of justice as it relates to the Brian Banks rape case of 2002. It’s a great series, and they’re fairly short. So please click the link above, and lend your ear occasionally to Skyler, and check out the podcast, will you?

 Long story short, Banks was an up-coming high-school football star, had committed to USC, and had every intention and capacity to play in the NFL. Before he was able to attend USC, classmate Wanetta Gibson accused Banks of dragging her into a stairway, and then raping her. He was looking at 41 years in prison, but thanks to a plea deal that he agreed to, he was sentenced to 5 years in prison, with 5 years of probation, and he had to register as a sex-offender, which is a lifetime if prison by itself. After the trial, Gibson sued the high-school where the rape allegedly occurred, and was awarded over 1 million dollars.  When Banks was let out on probation, Gibson actually texted Banks asking to meet up (WTH???) and Banks accepted, hoping to get her to confess to lying. Somewhat surprisingly, he was successful, got an admission of lying on tape, and his record was expunged, and he was let out of prison.

There’s a Facebook picture making the rounds that shows the moment that Banks was acquitted, and let free. He’s got his head down, crying in joy over the outcome. It’s a sad story with a bittersweet ending. The picture asks people what should happen to Banks’ accuser, Wanetta Gibson, specifically asking if she should be in jail. The podcast goes on to talk about retributive justice, and acknowledging how most people would suggest anything from jail time, to the very same sentence for her, double the sentence, and so on. In any case, most people’s sense of justice is contained in an eye for an eye framework, and if that is impossible, restitution, or restoration of some kind needs to happen. The high-school did counter sue Gibson, and they were awarded over 2 million dollars. But what about Banks? What justice, outside of retribution, or punishment, could he ask for? He can’t be given his former talent back. So restitution is out of the picture.

In an impressive display of humility despite the horrible situation, Banks chose not to “go after” Gibson at all.

Ok, so here’s what I am wondering – From our perspective here at 3PA, was Banks’ liberty violated? The answer to that is absolutely. His liberty to live his life, go to university, get a college education (likely with a scholarship, so get paid a little), and then had a significant opportunity to play in the NFL. But Banks lost out in 10 years of play. No practice. No training and conditioning. After he was released, he spent time with the Seahawks, the 49ers, and the Falcons, even making their practice squad. Unfortunately, those 10 years of prison and probation prevented Banks from using his talent and ability to grow and progress, and get a well-paying job in the NFL.

So, using our 3 question criteria, we can determine that Banks liberty was violated, but more than that, what I’m curious about specifically is the concept of property as it relates to this case. Is talent intellectual property? Is it even property at all? From the anarcho-capitalist perspective, we have property when we work to transform a naturally existing thing, like land. If property can be defined as (at least one way, anyway) as taking something that exists naturally that nobody else is using, and transforming it for personal use, than that thing is property. In this way, it appears as if talent is property. And, it is something that can be protected, in that nobody else can copy your talent. Others may similar talents, yes. Applying to this question to the above case, Banks’ lack of play, or a regress in his talent, is why he was never picked up by any NFL team, despite being called in to multiple teams. Because of his sentence, he was never able to go to school, or get a college education that he had been promised. In the NFL, the average linebacker – the position Banks played – makes well over 1.5 million dollars per year. According to some various estimates, the average NFL player plays between 3.3 and 6 years. So we are talking about quite a bit of money here. Banks, ostensibly regressed in his ability and talent while in prison and on probation. Was his property interfered with? It’s not uncommon for people who have been injured on a job to receive in funds the amount they would’ve received had they been able to continue. Is this any different? Or is transformed property only personal property only if it is physical? Talent isn’t physical, and in this case, the income that could come from his talent, had it never suffered, is only potential. Is that different enough to argue that property rights were not violated?

Admittedly, I don’t have an answer. I’m not sure what the answer to that is, but it does seem like a terrible abuse of justice, but does it seem like that only because of ignorance? I don’t know, so I put it to you all to answer. What is justice in this case? Does it relate to property rights at all? His liberty certainly was done a great injustice. But how should it be addressed in a liberty based society? I’ll leave that answer to you. Have a great Sunday, and go Packers/Chiefs! 

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