August 15, 2017

You don’t have to pull the trigger to be a murderer

A couple of weeks ago, Michelle Carter, a young woman in Massachusetts, USA, was sentenced to two and a half years’ imprisonment after being found guilty of “involuntary manslaughter” for text messages she sent encouraging her 18-year-old boyfriend to commit suicide. She was 17 at the time.

Another case of a death indirectly involving others in the USA made the news recently.  On 9 July, a man found himself in difficulty swimming in a pond in the city of Cocoa, Florida. A group of 5 teenage boys between 14 and 16 were nearby and saw this. Instead of helping the unfortunate swimmer or calling for help, they laughed, joked and even recorded the poor man’s drowning on their cellphone.

These two events demonstrate a degree of callousness that I cannot begin to understand.

I cannot fathom how one person, knowing that the person they supposedly love (or at least like a lot) is struggling with mental anguish, chooses to encourage him to end his life rather than helping him find the help he so obviously needs.

Or how, out of a group of 5 boys, there is not even one finds that sympathy for a dying man outweighs the entertainment value of watching him die.

These two events  also show an interesting contrast between our law and that of the USA (actually its states, as each has its own law).

The USA has a several crimes relating to the death of another person: murder in the first, second or third degree, voluntary manslaughter and involuntary manslaughter (which has a number of sub-categories).

In South Africa there are two possible crimes – murder (and, like pregnancy, there are no degrees) or culpable homicide. Murder is when you intentionally cause someone to die (and, as we saw in the Oscar Pistorius case, there are different types of intent); culpable homicide is when you negligently cause someone to die.

Michelle Carter was convicted of what we would call culpable homicide. On the other hand, the 5 callous teenagers committed no crime under Florida law (and, I expect, that of most states in the USA).

In South African law, it would have been slam-dunk to convict the terrible teenagers for culpable homicide. Our law (correctly, in my view) places a legal duty upon citizens to act when it is reasonable to do so. The test is what a reasonable person would do under the circumstances; if a reasonable person sees someone drowning and is able to do something about it, failing to act is negligent and makes that person guilty of culpable homicide (there was a case that we studied in criminal law when I was at university that dealt with these exact circumstances, but it was so long ago I can’t remember its name).

I am not aware of a precedent in South Africa that is similar to the Michelle Carter case.

For a crime to be committed, there must be a causal connection between the action (or inaction) of the accused and the death. If you stand by and watch someone drown, you don’t foresee that they WILL die; but a reasonable person would foresee that they MIGHT die and do something about it – and failure to act is negligent and that is why you would be guilty of culpable homicide.

But, if you know for a fact that someone is going to attempt suicide and you not only don’t try and stop them, but positively encourage them, then you DO foresee that they will die and encourage them anyway. And this is indirect intention – or dolus eventualis, for those who followed the Pistorius case.

If Michelle Carter was in South Africa, she wouldn’t be guilty of involuntary manslaughter or culpable homicide – she would be a murderer.

Author: Robin Twaddle

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