Desuetude

Recent discussion on the possible revival of the Comstock Act got me to thinking about desuetude doctrine. Though there is no federal version of that idea, there are state cases where courts say that a criminal statute cannot be enforced due to desuetude. One example is State ex rel. Canterbury v. Blake, a 2003 West Virginia Supreme Court case. In applying desuetude there, the Court said that three factors were pertinent:

(1) The statute proscribes only acts that are malum prohibitum and not malum in se;

(2) There has been open, notorious and pervasive violation of the statute for a long period; and

(3) There has been a conspicuous policy of nonenforcement of the statute.

 

Anyway, food for thought.