So the important point to take away from this post is that there is a very cool website, Constitute, which allows you to read, search and compare the world’s constitutions. (Hat tip: Lawrence Solum). When you enter the site, there is a topics section on the left side and if you click on a topic, subtopics appear. For example, the topic “Legislature” is divided into 8 subtopics, one of which is “Legislative Independence and Power.” That subtopic is further divided into categories, one of which is “Immunity of Legislators.” Click on that and you can scroll through the world’s constitutional provisions on legislative immunity, from Afghanistan to Zimbabwe.
Scrolling through a few constitutional provisions on legislative immunity, it became apparent that many nations have constitutionally enshrined the concept of “flagrante delicto.” This term is defined by Black’s Law Dictionary as “in the very act of committing the crime,” but as far as I know it is not a legally significant concept under American or common law. It is better known here as a euphemism for being caught in the midst of sexual activity.
In many countries, however, a legislator’s immunity from arrest may turn on whether he was caught in flagrante delicto (in the legal sense). In France, for example, Title IV, Art. 26 provides: “No Member of Parliament shall be arrested for a serious crime or other major offence, nor shall he be subjected to any other custodial or semi-custodial measure, without the authorization of the Bureau of the House of which he is a member. Such authorization shall not be required in the case of a serious crime or other major offence committed flagrante delicto or when a conviction has become final.”
So basically a French MP can avoid being arrested for a serious crime so long as he leaves the scene quickly enough.
In France the “flagrante delicto” exception applies solely to the arrest privilege, but in some constitutions it appears that it would also apply to prosecution and punishment for whatever period the member would enjoy this protection. In other words, if a member is immune from prosecution during the legislative session or while he remains in office, he would lose this protection if caught in flagrante delicto. At least according to my quick scrolling through a number of constitutions.
I don’t know how often legislators are actually caught in flagrante delicto. (In the legal sense; in the other sense I am sure it happens all the time). But the important thing is that you can learn lots of interesting information at Constitute. Also I have made it through this entire post without mentioning Anthony Weiner.