A Krampus Constitutional Nightmare

Nothing says parenting with the stick instead of a carrot like telling children that Krampus will whip them and drag them to Hell for a year if they are bad.

This stands in stark comparison to Santa Claus, who rewards positive behavior with toys for good children. Where Santa is the gift-giving version of the NSA, Krampus makes enhanced interrogations look like caroling.

Assuming Krampus could be prosecuted in a human court, what crimes is he committing against children?

Krampus whipping and taking children to Hell is an absolute denial of the Due Process rights for the accused children. The 14th Amendment requires that no one can be deprived of their life and liberty without the due process of law.

Krampus represents convicting children of wrongdoing without a trial and sentencing them to cruel and unusual punishment in violation of the 8th Amendment. While one Maryland court in 1883 held whipping a husband who brutally assaulted his wife did not violate the Maryland constitution or the 8th Amendment to the United States Constitution, this is the minority view. Foote v. State (1883) 59 Md. 264, 267.

As one New Jersey court noted, there are three forms of punishment in the United States: fine, imprisonment, or death. As for punishments such as dunking in water, it is “to be doubted the corporeal punishment for crimes was ever the law of this State after its declaration of independence from England and adoption of its first Constitution (1776).” State v. Palendrano (Super.Ct. 1972) 120 N.J.Super. 336, 339, fn. 2, referencing “The Whipping Post and Some of Its Uses“, 15 N.J.L.J. 356. As such, the whipping of children is simply not permitted.

Krampus taking children to Hell for a year is an extreme form of imprisonment without a trial. It is difficult to imagine what offense a child could commit justifying imprisonment in Hell, thus is disproportional punishment on its face, short of an seven-year old committing a war crime. While many parents might claim their child can be a terror with low blood sugar, children are not know for fire bombing civilian targets.

The military would respond swiftly if Krampus were a real entity committing child abduction for Christmas. Instead of NORAD providing holiday cheer with tracking information on Santa Claus, the NSA, CIA, FBI, and the military would be on high alert tracking Krampus with the same resolve as a nuclear missile launch.

Luckily, we live in a world where Christmas is celebrated for kindness, whether Christians are celebrating the birth of Christ, or others embracing the human spirit to be good to each other. There is a reason this ancient folk legend has largely been ignored across the Earth.

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Josh Gilliland
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, the ABA Web 100 for Best Legal Blog and Podcast categories, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.