It’s been a while since I’ve done a vocabulary post on a legal word (surprising, considering that a good chunk of my recent work has been for law firms; that’s been so successful that I’ll soon be offering a new service specifically for legal clients).
In the past, I’ve covered a few unusual words that appear in legal contexts (and issues of legalese; see: usufruct, burglarious, this, and this). Today, let’s look at “asportation.” It’s not about aspiration or transportation; airports or teleportation; perspiration or trainspotting.
Colloquial use of some legal terms seems to break in waves; someone, somewhere, latches on to one, uses it a few times, and the next thing you know it’s a meme (…a real meme… ), spreading through the consciousness of prosecutors and the journalists who cover the courts.
Over the past few months, I’ve seen repeated uses of asportation. It’s a word I was only vaguely aware of; I probably ran across it less than once a year. Suddenly, it was showing up multiple times a month, and always in a wordy formulation (usually “shoplifting by asportation“).
Asportation, in legalese, is (depending on your dictionary), “felonious removal of property” or “the carrying away of someone else’s property that is an element of larceny” or “the removal of a person or property without consent or permission, as an element of larceny, robbery, or kidnapping.”
But here’s the thing. Legally speaking, those definitions are out of date. Here’s a more recent one, which explicitly notes that asportation is not an essential component of larceny (emphasis mine): “the detachment, movement, or carrying away of property, formerly an essential component of the crime of larceny.” That isn’t because carrying away is not a crime; it’s because you don’t actually need to carry something away for it to be larceny: you can simply move it or hide it (presumably for a later carrying away). [As a side note, physical asportation is apparently still noted as a required element in some kidnapping statutes, although case law suggests that it’s also no longer an absolute necessity.]
Asportation is from a Latin verb which means (no surprise) “to carry away.” OED has a first use citation from just after 1500, but it seems never to have been widely used, even in law. Many online search results refer directly or indirectly back to 19th century texts, in turn based on lectures from a century earlier (Blackstone’s Commentaries, if you’re wondering).
The main reason the recent uses of asportation caught my attention is because it didn’t seem like the wording was quite right. When I’ve run across it, it’s almost entirely been in the police blotters of local papers (in Massachusetts). But…I can’t actually find the term “asportation” in the Massachusetts criminal code. I’m not a lawyer (nor do I play one on TV or here on the web), but it seems to me that explicitly using this as part of the charge in a criminal complaint—when there is no such wording on the books—presents potential problems. Asportation is an archaism; in Mass, the proper term is “shoplifting” and it’s covered in Part IV, Title I, Chapter 266, Section 30A of the state’s General Laws. I’m not sure when asportation was dropped from the wording of the statute (if it was ever there), but it’s not in it at this time.
Perhaps I’m being too persnickety, but it seems that when you charge someone with a crime that isn’t actually on the books—and “shoplifting by asportation” isn’t—you’re sliding toward trouble on at least two fronts. First, charging someone with a crime that isn’t technically a crime (by the exact wording), could lead to abuse. Second, when there is a legitimate crime (which shoplifting is) the prosecution runs the risk, however small, of giving the accused a way out of the charge.
A third issue, of interest to me, is separate from right or wrong, guilt or innocence: it should be a misdemeanor offense to use deliberately obfuscatory language in any context (and when it comes to legalese, we might need to elevate it to a felony). Why say “shoplifting by asportation” when you mean “shoplifting?” Just say what you mean,
and don’t use more words than you should.
But then again…
Above, I’ve approached the use of asportation from one angle: it’s an archaic term that’s creeping in to cause unnecessary wordiness. However, it’s possible that something else is going on here. This could instead be an example of living, evolving language.
When an existing thing—a physical object or an abstract idea—is clear, it can own exclusive use of the words used to describe it. A telephone, when it was invented, was a telephone; an oven was an oven, and a diaper a diaper; a store was a store, and a keyboard a keyboard. But when some other item develops out of that item (or develops independently, but ends up in competition with it), confusion can arise. New terms come into existence to clarify which thing, of the various possibilities, you’re actually referring to.
These words—modified forms created retroactively to distinguish one type of item from another—are known as retronyms. The process of creating them would, I suppose, be called “retronymification” (but I’ve yet to see that term used).
We take many retronyms for granted and use them without noticing. We don’t realize that the phrase “acoustic guitar” didn’t exist until electric guitars became common; we find nothing unusual in “broadcast television,” because most of us have always lived in a world that includes cable. We talk about “conventional ovens” to separate them from microwave ovens, “rotary dial telephones” to differentiate them from all the others, “fixed-wing aircraft” to distinguish them from helicopters, and “brick-and-mortar retailers,” because so much commerce has moved online.
We use these words in specialized areas, too. The term physics once covered most of science; today it’s much narrower, and is often subdivided further, with specialists in astrophysics, quantum physics, condensed matter physics, and numerous others. Nordic skiers (dear to my heart) didn’t require an adjective until Alpine skiing became popular. Within Nordic skiing, there was no need to discriminate between classic skiing and freestyle skiing (also called skate skiing) before the techniques diverged, beginning in the 1970s. (As an aside, don’t call it “classical skiing.” It’s not played in a concert hall.)
Maybe that’s what’s going on with shoplifting by asportation. The law already includes specific references to shoplifting by concealing merchandise, shoplifting by switching a price tag, shoplifting by switching containers, and shoplifting by ringing up a false price, so those who deal with these cases might need to clarify the basic, plain vanilla, run-of-the-mill type of shoplifting. And so, a new retronym is born: “shoplifting by asportation.” (Actually, the statute doesn’t use those terms, either, but the official jury instructions do.)
If this is true—it’s a retronymic use, not redundancy and verbosity—then the distinction should probably be added to the wording of the law. Otherwise, everyone involved should stick to the simplest wording and use what’s actually in the statute: shoplifting by carrying away.
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If you like getting into the weeds of oddball cases, take a look at this brief (2 page) commentary on a 1954 case involving third party asportation.
Shoplifting, by the way, is used in print more than 26 times more often than asportation; larceny is used close to 40 times more often. Also, did you know that taking a shopping cart from a merchant’s premises is considered shoplifting in Massachusetts? Now you do.
For more on retronyms, Wikipedia includes a list that gives you a good start.
thebettereditor 