The Volokh Conspiracy
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Well, let me just start by getting this on the record: "Good lord, man, I can't support that." (And, yes, the version I remember is the "nun-beating" one.) But while this is nasty behavior (see CBS News, Fox News, Today), which should indeed be criminal, I'm skeptical about the apparent police theory that this is second-degree felony food tampering under Texas law:
Before the suspect was identified as a juvenile, police said she could have faced up to 20 years in prison. They had planned on arresting her on a charge of second-degree felony tampering.
Texas Penal Code § 22.09 provides,
(a) (2) "Tamper" means to alter or add a foreign substance to a consumer product to make it probable that the consumer product will cause serious bodily injury.
(b) A person commits an offense if he knowingly or intentionally tampers with a consumer product [including food] knowing that the consumer product will be offered for sale to the public or as a gift to another.
(d) An offense under Subsection (b) is a felony of the second degree unless a person suffers serious bodily injury, in which event it is a felony of the first degree.
And licking food doesn't seem to "make it probable that the consumer product will cause serious bodily injury"—possible, yes, probable, no. (UPDATE: Just to be clear, matters might be different if the defendant knows she has a serious communicable disease that could be transmitted that way, but there seems to be no evidence this is so in this case.) To be sure, a nonprecedential Texas case does seem to stretch the "probable … will cause serious bodily injury" a bit, but that case involved someone sprinkling powdered feces on food, which strikes me as quite a bit more dangerous. (A jury sentenced the defendant to five years in prison.) The licked ice cream strikes me as comparable in dangerousness to guacamole at a party in which people were double-dipping, or for that matter a tub of ice cream into which someone had stuck a spoon that she had eaten from.
It's not that licking an ice cream tub is great for public health, and it's certainly illegal. But this particular Texas statute doesn't seem to cover it.
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