Tag Archives: Culpable Homicide

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

Instrumental versus Expressive violence

Something I just came across :

Difference between instrumental and expressive violence
-Expressive violence: acts that vent rage, anger, or frustration
-Instrumental violence: acts designed to improve the financial or social position of the criminal

And then we have

Degrees of murder
1. First degree
2. Second degree
3. Felony murder

In the Jodi Arias trial, if you suspect or believe Jodi is guilty, it is surely clear that this was “expressive violence”.

  • Jodi was surely not trying to improve her financial position or her social position.
  • Supposing she accomplished the aim of her alleged secret murder mission, the objective was surely for the mission to remain secret.
  • The theft of Travis’ gun (supposing it was his gun) cannot have been designed to improve her financial position.

It seems to me that charging Jodi with Felony murder surely goes outside the intention of the law. The degrees of murder are meant to be mutually exclusive. Something is wrong here.

See also trial minutes and Women don’t kill unless

Oscar Pistorius and the Culpable Homicide verdict

I have hesitated to comment so far on the verdict. However from the wikipedia article on the trial, I read:

The defence of Pistorius was that, in shooting at what he believed to be an intruder, he mistakenly believed he was acting in self-defence, and as self-defence excludes the unlawfulness requirement of criminal liability, an act in valid self-defence is lawful. Technically his defence amounted to a claim that he did not intend to act unlawfully. If he could raise a reasonable doubt in his favour that he was mistaken, as he claimed, he is entitled, under South African law, to an acquittal on the charge of murder. The court then considered whether this mistake was reasonable – one that a reasonable person, in his circumstances, may have made.

If this is correct, the test is NOT whether Oscar could have acted differently, but whether a reasonable person, in his circumstances, may have made the same mistake.

I fail to see how this possibility can be excluded. People make mistakes all the time. Unless there was Malice in the mistake Oscar made, I do not believe he should be held to have committed a criminal act. And I see no evidence of Malice, or any intent to act for his own gain, other than to defend himself and Reeva.

To me, the judge seemed mostly concerned with explaining how Oscar was not guilty of murder, and failed to explain adequately her reasoning on the proof beyond a reasonable doubt that he was guilty of manslaughter.

Just my lay opinion. I could be wrong.