Distasteful acts that escape prosecution: Legal gaps in morality

Not every reprehensible or immoral act is illegal. While the law is designed to maintain order and justice, it does not always capture the full range of behavior that society finds offensive or morally troubling.

There exists a gray area where certain distasteful acts, though socially condemned, are not punishable under criminal statutes. These acts highlight the tension between legality and morality, underscoring limitations in the legal system.

In our daily work, we face behaviors that fall on a spectrum somewhere between ignorant, degenerate, and reprehensible. A few months ago, a member of a high school sports team in our district urinated in the water jug that everybody, including the opposing team, drank from. This action resulted in an outcry, news coverage, and the local law enforcement wanting to charge the perpetrator with 15 counts of battery, one for each person who drank from the water jug.

While some have said a case could be made, for us it comes down to the current law in New Mexico, which states that battery consists of the unlawful touching of another person in a rude and insolent manner, which does not apply in this case. Could we make some kind of creative case here? Perhaps. My attorneys are good and know their way around the law. Reasonable prosecutors sometimes disagree on what, if any, charges can be filed. Given the nature of the 200 and some cases each of my attorneys has right now, including DWIs, rape, domestic violence, assault with a deadly weapon and so on. I feel the use of our resources better serves the safety of our community elsewhere.

There are better options…The Juvenile Probation Office can intervene without the need to file criminal charges. There are so many ways that humans behave badly, which don’t rise to the level of criminal behavior. Teenagers on a sports team acting like teenagers with poor judgment in this case are not criminal.

In order for our office to prosecute a case, there must be a clear-cut law to hinge the prosecution on. In order for us to prosecute, the New Mexico State Legislature needs to create a law that makes the action a crime.

Some things in the course of human behavior we may wish we could prosecute. Take, for example, hate speech or offensive commentary that, while abhorrent, is protected under freedom of speech laws. In the United States, for instance, the First Amendment shields individuals who engage in racist, sexist, or homophobic rhetoric, so long as it does not incite violence or constitute a true threat. While such speech can result in social consequences, like loss of employment or public shaming, it generally remains outside the purview of criminal law.

Exploiting legal loopholes or engaging in predatory business practices also illustrates this dynamic. Take the example of “pharma bro” Martin Shkreli, who drastically raised the price of a life-saving drug overnight. While he was later convicted of unrelated securities fraud, the initial act that earned him public scorn—gouging patients—was legal. Similarly, payday lenders often impose exorbitant interest rates on financially vulnerable individuals in ways that, though exploitative, fall within regulatory boundaries.

The public dissemination of private or embarrassing information, sometimes called “doxxing,” may also go unpunished depending on the context. If the information is lawfully obtained and does not directly threaten harm, the act may not meet the legal threshold for harassment or invasion of privacy, even if it leads to real-world consequences for the targeted individual.

Another disturbing but legally complex example is neglecting to help someone in distress. In many countries, including much of the United States, there is no legal obligation for a bystander to intervene or assist someone in danger unless a specific relationship or duty exists. This is sometimes referred to as the “no duty to rescue” principle. Watching someone drown without attempting to help or call for help may be morally indefensible, yet it is not always a prosecutable crime.

These examples illustrate how the law often lags behind evolving moral standards or draws lines that exclude sometimes troubling behavior from criminal liability. The gap between what is distasteful and what is illegal is not merely an oversight; it reflects philosophical, constitutional, and practical constraints on the law’s reach.

We do our best within the constraints of the law and our resources to serve the community and seek justice as best we can. Our goal is always justice within the bounds of the law.

(Barbara Romo is district attorney for the 13th Judicial District, which includes Valencia, Sandoval and Cibola counties.)