September 28th, 2011
In what has been described as a “medieval-style attack on science,” Italian prosecutors have charged six seismologists and one public official with manslaughter for their role in an earthquake that devastated the town of L’Aquila. The 6.3-magnitude earthquake took the town by surprise on April 9, 2009, resulting in over 300 deaths.
The prosecution’s case appears to be grounded in a seismological risk-assessment made by Italy’s aptly named Commission of Grand Risks. The assessment, it is alleged, led to a memorandum describing the possibility of a major tremor as “improbable.” The defendants, in turn, made public statements to this effect. The prosecution is now focusing on these public statements, arguing that they effectively “persuaded the victims to stay at home.” In essence, these scientists are being accused of causing death by negligently downplaying the risk of a deadly earthquake.
It goes without saying that scientists from across the globe will be paying close attention to this trial—which is set to reconvene on October 1, 2011. In fact, they have been paying attention for some time already. Last year, over 5,000 scientists worldwide signed an open letter of protest addressed to the President of Italy. The letter makes its position quite clear:
The allegations against the scientists are completely unfounded. Years of research worldwide have shown that there is currently no scientifically accepted method for short-term earthquake prediction that can reliably be used by Civil Protection authorities for rapid and effective emergency actions.
One of the more prominent champions of this international protest is Rick Aster, President of the Seismology Society of America. In a recent radio interview, Aster offered his thoughts:
I think people have to realize, and the community is very honest about it, that earthquake prediction is an extremely daunting scientific, technical and indeed, a political issue, so I don’t think we’re misrepresenting our ability to predict earthquakes; everyone would agree is essentially null.
The scientific community is essentially contending that these charges are unfounded due to the fact that seismology, in its modern form, is entirely unable to predict earthquakes. A fair point, indeed; however, the defendants’ ability to predict earthquakes is not really at issue here. The real issue—or so it appears—is the extent to which the public was led to believe that the defendants had an ability to predict earthquakes.
Would an average L’Aquila resident not be justified in trusting that a seismologist making public statements as to the probability of an earthquake would have more than an “essentially null” ability to make such a prediction? Depending on how the details play out in court, this fact pattern screams tort—indeed, there is a $66 million civil suit being pursued—but manslaughter?
Under Canadian law, these manslaughter charges would likely be brought pursuant to section 220 of Criminal Code: criminal negligence causing death. Section 219 defines negligence, in this context, as doing anything, or omitting to do anything, that “shows wanton or reckless disregard for the lives or safety of other persons.”
Assuming the prosecutors are able to prove the act or omission (which may simply be the public statements), they would then need to establish beyond a reasonable doubt that the defendants demonstrated a “wanton or reckless disregard for the lives or safety” of L’Aquila residents. Canadian courts have established an “objective test” for this requirement, meaning that the accused’s behaviour must represent a marked and substantial departure from that of a reasonable person in the circumstances. This might be difficult to prove, considering that nearly every seismologist on the planet signed a petition saying that the defendant’s actions were, in fact, reasonable.
The prosecutors must then prove that the same “reasonable person” would understand that his or her conduct posed a risk of bodily harm. Provided that the conduct at issue here is the act of persuading L’Aquila residents to stay in town, it would be hard to believe that a reasonable seismologist in this situation would not understand the potential for bodily harm. Whether or not the risk in this case was at a sufficient level to satisfy this requirement remains to be seen.
Finally, causation would have to be established. That is to say, the conduct of these scientists must have actually caused these deaths. While it may seem obvious that is was the natural disaster that killed these people, as opposed to the scientists, the conduct need not be the sole cause of death, so long as it contributed significantly. In more typical manslaughter cases, this requirement results in questions along the lines of, “did the car crash actually cause the man to die?” or “was the girl’s punch the significant contributing cause of death?” In this case, however, the court would need to determine whether the act of downplaying the risk of a major earthquake actuallycaused these resident of L’Aquila to die. If the accused had predicted a large earthquake, would these people have saved themselves; would they have left town or found adequate protection? Conversely, if the accused had said nothing—in accordance with their evidently “null” ability to make such a prediction—would these lives have not been lost?
Clearly, the answers to many of these questions depend on a more complete set of facts—the sort of facts that will likely be established at trial. In the meantime, these seemingly unprecedented charges have created quite a stir, and much like the international scientific community, TheCourt.ca will be eagerly awaiting the court’s decision.