The Definition of Theft in the #MeToo Era
“Judgment does not come suddenly; the proceedings gradually merge into the judgment.” Franz Kafka, the Trial.
This is the story of Joe and Jim Cortez who ran Joe and Jim´s Fantasy Sports Memorabilia in Las Vegas for more than twenty-five years. Joe and Jim grew up in Louisville, Kentucky. Joe had a chance encounter at a community centre with Muhammad Ali in 1988 when he was 12 years old and the GOAT signed a pair of $50 boxing gloves. Joe and Jim grew up on the wrong side of the tracks in Louisville, so to help their family, Joe sold the gloves to a wealthy friend for $2,500.00 the very next day. Joe realized that a good living could be made by selling sports memorabilia and that it was his ticket out of his difficult financial circumstances in Louisville. Joe told his brother his plan and then they got to work.
From then on, the brothers began collecting as much sports memorabilia and signatures as they possibly could. Joe and Jim got contacts among athletes and agents and after many years of working and hustling, eventually fulfilled their dream of opening their own sports memorabilia store in Las Vegas in 1995. Joe never married and never had children. His one true love was the store.
One day, in the year 2020, a long-time customer named Barbara came in to buy something for her son´s birthday. She had bought many items over the years, but was looking for something special for her son´s 18th birthday.
“Can you recommend anything Joe?”
“I got something really special the other day.”
“What? Will my son like it?”
“Your son will go crazy for it!” Exclaimed Joe.
“I have a picture of some of the major characters of Rocky all signed by the actors: Sylvester Stallone, Talia Shire, Mr. T. and even Dolph Lundgren.
“Dolph Lundgren?” Said Barbara, “Who is that?”
“He´s the big Russian from Rocky IV who killed Apollo Creed in the ring! He´s a legend!” Said an incredulous Joe.
“Oh I don´t know.” Said Barbara. “I am not even quite sure that my son likes Rocky IV.”
“Everyone likes Rocky IV. Your son will absolutely love it. It is the perfect gift for an 18-year-old just about to become a man. Trust me.” A confident Joe reassured.
“Well how much is it?” Inquired Barbara.
“It is $4000.00. Trust me this is one of a kind, it will only appreciate in value.”
“$4,000.00?!” Barbara exclaimed, “I can´t afford that.”
“Ok I´ll tell you what. I´ve known you a long time, it´s your son´s birthday. For you, I´ll let it go for $3,000.00.”
“I don´t know, $3,000.00 seems like an awful lot of money for something I´m not even sure my son will like.” Said Barbara.
“Your son will love it. I am making you a great deal. Look, if you don´t buy it, this item is going to sell in the next day or two. Rare items like this always do. This is the kind of deal that credit cards were made for.” Joe assured.
“I hope you are right.” Said Barbara.
“Trust me, I am making you a great deal. Please wish your son a happy birthday from me! Tell him to come by and have a look at everything else we have.”
Barbara handed over her credit card, signed the receipt and then took the item and walked out of the store.
Three days later, Jim and Joe were working at their store and Jim told Joe he was going for lunch and asked him if he wanted anything. Joe asked him to get a Philly cheesesteak and Jim went on his way.
A few minutes later, two police officers came into the store.
“Good day officers, how can I help you? Can I interest you in a signed picture of Shaq in a police uniform?”
“You are under arrest for theft.”
“THEFT?! I have never stolen anything in my life! What did I steal?! Who did I steal from?!” An outraged Joe said.
“Do you know Barbara Gray?”
“I know Barbara Gray. She came in the store the other day and bought a framed picture signed by some of the actors from Rocky.”
“Barbara claims that you stole $3,000.00 from her and that she never wanted that item.”
“That is completely insane.” Said Joe, defending himself. “The store was open and she was free to leave at any time.”
“That is a myth about how a victim of theft would behave.” Said the lugubrious police officer.
“But there were other people in the store around when this alleged theft was going on!” A heated Joe said.
“That is completely irrelevant.” Said the completely humourless officer.
“But Barbara is a long-time customer. She knows exactly how I am when trying to sell items to her. She has bought items from me at least ten times in the past!” Said Joe.
“That is also a myth and that has nothing to do with whether she bought the item willingly on this occasion.”
“But she handed over her credit card! I didn´t force her to do anything.”
“There is no such thing as a perfect victim.” Said the dreary officer.
“But she signed the receipt I gave her. Her signature is right here!” Said Joe, while gesticulating vehemently towards the receipt with Ms. Gray´s signature.
“You are obviously not aware of all of the myths that have plagued and infected the offence of theft for decades.” Said the Stasi-esque officer.
“But she never told me to stop talking to her or to leave her alone or that she did not want the item or anything like that.” Protested Joe.
“Let me ask you a question.” Said the other officer, who was equally lugubrious and Stasi-esque.
“Did Ms. Gray ever say the words, “Yes I want to buy that item?”
“Well, no. Not exactly. She handed over her credit card.” Said a more timid Joe.
“When it comes to the offence of theft, consent is an ongoing process that must be affirmatively communicated at all times.” Said the officer.
“That is just not how the process of selling works. The process of selling is dynamic and fun. I´ve been selling for the past 30 years, it is all I know. You don´t stop and confirm at every point in time that you are making the sale and get verbal consent. If she hands over her credit card and signs a receipt, what more am I supposed to do? Am I supposed to ensure that she has verbally communicated consent at every moment of this dynamic and fun interaction? It sounds to me like you are the one who is engaging in myth by pretending that the process of selling can be broken down into different segments were verbal consent is required in every artificial segment you have broken it down into.”
“Well Mr. Cortez, you are obviously not sufficiently aware of how important the issue of consent is when it comes to selling. I don´t feel the slightest bit of sympathy in serving you this summons.” Said the Kafkaesque officer.
“Ok.” Said Joe, accepting his fate. Joe took his summons for a court appearance and the two dull and dreary officers left his store.
About ten minutes later, Jim returned to give his brother his Philly Cheesesteak and was shocked to see the store that they had built and ran together for 25 years, the store that was Joe´s one true love, had shut its doors and there was an ´Out of Business´ sign covering their usual ‘Joe and Jim´s Fantasy Sports´ sign.
A devastated Jim cried out with a painful shreik, “What happened?!” to his brother, who appeared distraught. “How could you do this without asking me? What about my life? What about my children? How am I supposed to take care of them?”
Joe looked at his brother and said: “I made a sale a few days ago and got charged with theft. The police came to see me.”
“So?!” Said his enraged brother. “Fight back against the charges. Clear your name. Hire a lawyer. Don´t just throw away our dream and everything we have built!”
“It´s not the charge. That´s not the problem.” Said Joe, who looked a bit more cerebral at this point.
“Then what is?” A curious Jim asked.
“It was the conversation I had with the police officers and the sense of inescapability I had after talking to them.”
“What do you mean?” Queried Jim.
“By the time I was done with it, I realized – I have no idea what a consent sale is.”