What is Murder ?

It seems to be that the general public, and indeed many people who should know better, often fail to understand the meaning of this ancient word.

Murder is the unlawful killing, with malice aforethought, of another human, and generally this premeditated state of mind distinguishes murder from other forms of unlawful homicide (such as manslaughter). (Wikipedia)

The key point that is often overlooked is “malice”. Malice implies some motive for personal gain, for example to eliminate a witness to an earlier crime, robbery, financial gain, to escape capture or to take revenge for some percieved wrong.

I believe people often only focus on the physical act  (“actus reus”) and forget the essential mental element (“mens rea”).

In law, the prosecution is generally not required to prove motive, but I sometimes wonder if this is a big mistake. If no rational, malicious motive can be established, then should we call a killing murder at all, but instead declare it to be manslaughter?

In the case of Oscar Pistorius, the South African authorities have opted to appeal the conviction for manslaughter, asserting that a murder verdict should have been returned. But it is abundantly clear that Pistorius had no malicious motive, he simply made an extremely tragic error, using force that was not justified, due to an irrational fear. There is no need for further analysis.

Similar considerations apply to women who have reacted with excessive, disproportionate force in situations where they have become terrified for psychological reasons. A person acting out of fear, should never be charged with murder, however unreasonable their actions may be, if a malicious motive is not evident.

That’s the memo.

See also Instrumental versus Expressive violence

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