Tuesday, July 29, 2008

More on murder

Murder is, at heart, a very simple crime. If you kill someone, having had the intention to kill them, or at least to injure them, then you have committed the crime of murder. There is only one complete defence to murder - that the killing was an act of self-defence. And that is a fair state of affairs.
However, the philosophy of murder is far more complicated. Although that definition looks clearcut and straightforward, it is easy to lay out circumstances that provide a stratum of culpability. I'll start off with an historic case, that of R v Dudley and Stephens. It's about as fun and interesting as law school precedents get, involving as it does shipwreck, murder and cannibalism. Briefly, the yacht Mignonette was struck by a wave and sank in the Atlantic Ocean, her three crew, Tom Dudley, Edwin Stephens, Edmund Brooks and Richard Parker, the cabin boy escaping onto the lifeboat, without any fresh water.
After two and a half weeks with hardly any food and less water, Parker sank into a coma, and Dudley and Stephens decided that, in order for them to live, they would have to eat Parker. Which, basically, they did. 24 days after they were wrecked, a sail was sighted and they were rescued. Had they not killed Parker, there is no doubt that they would have died. On return to London, they were tried for the murder of Richard Parker. They were convicted of murder; rightly, because the defence they tried - that the murder of Parker was necessity - is no defence to murder.
Dudley and Stephens are perfect examples that though the crime of murder is definable and straightforward, the culpability of the act can vary. However, such is the moral force of murder that the judiciary have extremely limited room to manoeuvre with regard to sentencing - there is now a statutory life sentence, and there was then a statutory death penalty for murder. It is for this reason that the growth in partial-defence manslaughter cases has been so rapid.
The two partial defences of provocation and diminished responsibility are pretty well summed-up by Julie Bindel here as "men lose their tempers; women lose their marbles", for that is the way in which they are predominantly used. Men see red and lash out, while women slowly build up years of resentment and then slip their husband strychnine in the soup, or stab him while he sleeps. However, the idea that women must have gone temporarily insane to commit the murder has grated with feminists for a long time - they aren't mad at all, they have just been provoked beyond endurance.
The law is being changed, in effect, to make it harder for men to claim provocation, and easier for women to claim 'partial self-defence'. It is being made much less 'acceptable' to kill in anger, and more acceptable to 'kill in fear'. Bindel justifies it thus:
These reforms, although a long time coming, are along the right lines. It is wrong to kill out of jealously, or because someone insults you. This is not serious provocation, nor should it be an excuse for murder. Whereas battered women are often trapped in their situation, with nowhere to run, the victims of "nagging" and infidelity can simply leave the relationship, without the fear of being tracked down and killed.
The principle behind both defences at present is that the murder was not done deliberately - the murderer was temporarily 'not in his right mind'. The principle is that a deliberate, pre-meditated murder, done with full knowledge of one's actions is not excusable. This is surely right. For what it is worth, the defence of provocation has been grossly abused in the past, as has the defence of diminished responsibility. There is little doubt that any new defence of partial self-defence will also be abused.
The reason they are so abused is summed up (accidentally) again by Bindel:
Why should women, such as the late Emma Humphreys, the victim of horrendous abuse by the man she killed, be labelled a murderer? Emma once told me that the stigma was almost as bad as the life sentence that came with it.
Well, she should be labelled a murderer because she deliberately killed somebody. The law, which is a reflection in this instance of the values of our society over hundreds of years, has laid down that the deliberate killing of a person is only justifiable in one circumstance - where that individual was at the moment he was killed posing an immediate threat to the life of the killer. Any other circumstances are murder. It is that simple.
Hence the defences seek to prove that the killing was not properly deliberate as the killer was temporarily not in right mind.
Partial defences seek to blur the moral clarity of the law of murder. Each defence is a legalistic fiction. The serial killer claiming insanity is bad as well as mad; the drunkard claiming provocation may have been provoked, but he deliberately chose to fight; the battered wife claiming diminished responsibility may have been abused, but she wasn't crazy when she picked up the carving knife. All are (in my scenario) in reality guilty of murder. The partial defences tamper with the offence, when they are better used to determine the punishment.
A judge should decide the sentence after the jury decide the facts. A lifetime spent cowering from a misogynistic bully should be a mitigating factor in your killing of him. Each case of murder will have different circumstances - sentences should be tailored to fit. In Dudley and Stephens, the two were sentenced to six months imprisonment. They were murderers, but the facts of the case were such that the standard penalty was simply not appropriate.

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