Mundraub or the Story of the Forbidden Fruit

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Recently, a high appellate court in Italy decided that stealing food is not a crime if the person needs to steal to survive. The case began in 2011, when a homeless man named Roman Ostriakov stole €4.07 of cheese and sausages from a supermarket in Genoa. A fellow customer informed the store’s security when Ostriakov tried to walk out with the cheese and sausages in his jacket after only paying for a couple breadsticks.

Four years later in 2015, Ostriakov was convicted of theft and sentenced to six months in jail and a €100 fine. Several appeals were made on Ostriakov’s behalf in hopes of finding a more lenient sentence. But this May, the Supreme Court of Cassation decided instead to fully acquit Ostriakov, arguing that the defendant “could not live without feeding himself, so acted out of necessity.” The court also added in its judgement a reminder that “in a civilised country not even the worst of men should starve”.

This is the first time that a court of this stature in Italy has used the doctrine of “state of necessity” to acquit a petty crime like shoplifting by a poor person. Historically, poverty has not been used to legitimately excuse a (so-called) moral or social failure like theft.

Response to the historic decision have been passionate. “For the supreme judges, the right to survival has prevailed over the right to property,” Massimo Gramellini, an editor at La Stampa, wrote in an opinion column. “In America that would be blasphemy. And here as well, some conformists will talk about a legitimation of proletarian expropriation.”

Others approve of the judgement, pointing to Italy’s rising homelessness and poverty rates as more reason to protect a (so-called) universal right to dignity and life. The real criminals, in their opinion, are not the Ostriakovs of the world but the governments and corporations who continue to abandon and disenfranchise the poor.

It is too early to tell if this ruling is a slippery slope and in what direction that slope veers. The decisions of the Court of Cassation do not set a legally binding precedent for future cases in Italy, but it is very possible that the arguments of the Ostriakov acquittal will reverb in the echoes of future courtrooms across Europe. If judges and lawyers are going to continue to refer to the “state of necessity” doctrine in cases like Ostriakov’s, then soon enough, terms will need to be established more clearly. How do you define “need”? Is the pocketing of 4 euros worth of food acceptable but 50 euros of food not? Should the theft of medicine or clothing or other basic necessities be similarly excused? When does a theft leave the realm of desperate survival and enter the realm of greed or criminality? The questions go on and on.

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Meanwhile, in Germany, crime statistics from a June 2016 Deutsche Welt article show that 391,000 cases of shoplifting were recorded across the country in 2014, marking a 7-percents surge year-on-year. There is no data on how many of these instances of shoplifting were driven by a “state of necessity”. (And of course, the shoplifting of beauty products or luxury items is a different matter, at least legally speaking, than the stealing of food.) Officials are desperately trying to figure out how retailers are losing around 2.1 billion euros annually to shoplifting.

I have received varying anecdotal evidence from friends on stealing food from supermarkets in Germany. In short: we’ve all done it. Some of us even experience great pleasure from the act. Mundraub, which translates literally to “mouth robbery”, is the German word for the theft of food or drink in small quantity for immediate use. Most of us are probably only guilty of sneaking a couple grapes or nuts into our mouths while grocery shopping. Eating a banana in the produce aisle would be a much more brazen and impressive mundraub. One of my friends swears that mundraub is socially permissible, that “he does it all the time”, but the truth is he only feels this way because he hasn’t gotten caught yet. He is simply a better thief than the rest of us.

Technically, mundraub is a criminal offense in Germany, punishable with a fine or even up to 6 weeks of prison time. It also refers not just to petty theft in supermarkets, but also picking and eating produce from a tree or farm. German civil law goes into more detail about mundraub in the countryside, taking the time to clarify that even if a fruit falls on its own accord from a tree onto the ground, that fruit still belongs to the owner of the tree and cannot legally be picked up and eaten.

A group from Brandenburg called Mundraub.org is trying to cultivate a culture of scavenging in public spaces. On their website they have a digital, crowdsourced map that shows people where to find the nearest “harvestable” tree or shrub. They also publish a Mundraub guidebook. The group’s motto is “Freies Obst für Freie Bürge”, or “Free Fruit for Free Citizens”, which suggests they are definitely aware of the socialist implications of their project. The legality of what Mundraub doing is blurry, for in a lot of cases, public does not actually mean “free-for-all”, nor is it clear if Mundraub users actually go through the recommended steps of making sure that the tree they are picking from is not privately owned. Moreover, there is no way for Mundraub organizers to actually enforce such practices and they are very likely more than comfortable with that. Theft, if it remains petty enough, seems to be one of the most harmless ways to interrupt the existing system and get your fix of rebellion. Until, of course, you get caught.

Is stealing food wrong when you’re hungry? This is one of the oldest questions of moral relativism, which in turn is one of the oldest critiques of the law. And in the end, it might merely be the law which stands in between us and Cockaigne.
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