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PaperclipPerfector  1yr ago (text post)   30404 thread views

Culture War Roundup for the week of May 8, 2023

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The argument is simple. Under Anglo-American jurisprudence, in order for a person to be guilty of a crime he must have acted [with the mens reas, ie the criminal state of mind] that is required of that crime. However, a person who acts in self-defense lacks mens rea. Thomas v. Arn, 704 F. 2d 865, 875 (6th Cir 1983).

So, the issue in a self-defense case is the defendant's mens rea, and whether the victim is a good person or a bad person is normally irrelevant to that issue:

The flaw in this argument is that it assumes the law of self-defense centers on the victim's acts and intent. To the contrary, the law recognizes the justification of self-defense not because the victim "deserved" what he or she got, but because the defendant acted reasonably under the circumstances. Reasonableness is judged by how the situation appeared to the defendant, not the victim. As the Court of Appeal noted, "Because [j]ustification does not depend upon the existence of actual danger but rather depends upon appearances' (People v. Clark (1982) 130 Cal. App.3d 371, 377 [181 Cal. Rptr. 682]; see also CALJIC No. 5.51), a defendant may be equally justified in killing agood' person who brandishes a toy gun in jest as a `bad' person who brandishes a real gun in anger." If the defendant kills an innocent person, but circumstances made it reasonably appear that the killing was necessary in self-defense, that is tragedy, not murder. The test, therefore, is not whether the victim adopted the third party threats, but whether the defendant reasonably associated the victim with those threats.

People v. Minifie, 13 Cal. 4th 1055, 1068 (1996).

However, because self-defense hinges on whether the defendant acted reasonably based on what the defendant knew at the time, if the victim had a violent history and the defendant knew of that history, that is relevant to whether the defendant acted reasonably. See, eg, California Criminal Jury Instructions 505 and 3470, each of which say, in part, "If you find that the defendant knew that had threatened or harmed others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable."

Thanks for expanding.

I believe you need a guilty act too. And if the victim was clearly a bad person, and he deserved it, then society suffers no damage, and there's no guilty act. Is mens rea (thoughtcrime) alone, sufficient?

Yes, of course there must also be a criminal act. In murder or manslaughter, the criminal act is causing the death of the victim. In fraud, it is making a false representation. But you are trying to import a concept ("the victim was a bad guy, so there is no crime") which is utterly foreign to Anglo-American jurisprudence. That is fine, but you obviously can't complain because, in this particular case, the system is following principles that are not only well-established but also foundational.

But you are trying to import a concept ("the victim was a bad guy, so there is no crime") which is utterly foreign to Anglo-American jurisprudence.

What about capital punishment? Is that murder, or is there no crime because the victim was a bad guy?

Murder is generally defined as an "unlawful" killing. So that is why capital punishment is not murder.

Your answer just begs the question, mine makes sense.

At least try to justify the law. Perhaps you could argue that the executioner does not have mens rea, and therefore it's fine. It's a tragedy when a convicted murderer dies, and so on.

No, it answers your question. You asked whether capital punishment is not "murder" because the victim is deemed a bad guy. The answer is no, because there is a different reason that capital punishment is not "murder": because an execution is not an unlawful killing.

As for mens rea, an executioner clearly has the mens rea required for murder: The mens rea required for murder is malice aforethought, which is usually of two kinds, one of which is actual malice, which is the intent to kill. The executioner clearly has the intent to kill, so he acts with actual malice, and so has the mens rea necessary for murder. But the killing is not unlawful, because states with capital punishment obviously provides that an intentional killing by an executioner of a person who has been sentenced to death is not an unlawful killing. Therefore, despite causing the death of a person while acting with the mens rea required for murder, an executioner is not guilty of murder.

Similarly, in California, the killing of a fetus is murder. See Penal Code Sec 187(a) ["(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought."]. But, does that mean an abortion is murder? An abortion is an intentional killing, so the mens rea is satisfied. But, an abortion is not murder because the law goes on to explicitly state that an abortion is not unlawful:

(b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply:

(1) The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code.

(2) The act was committed by a holder of a physician’s and surgeon’s certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.

(3) The act was solicited, aided, abetted, or consented to by the mother of the fetus.

No, it answers your question. You asked whether capital punishment is not "murder" because the victim is deemed a bad guy. The answer is no, because there is a different reason that capital punishment is not "murder": because an execution is not an unlawful killing.

The question that concerns us is why it is lawful, not whether it is lawful. For example, when I asked you earlier about the moral character being irrelevant, you understood that merely describing the law would not answer my question.

The law could define the killing of the president's enemies, redheads, fishermen, or any other group, as 'not unlawful killing' like it does for executions, and your answer would remain the same. And that's all good and well, but it doesn't answer the only interesting question, why. My answer does discriminate between the killing of random fishermen and convicted murderers.

Similarly, for the question 'Is abortion murder? ' a respectable answer might be of the form 'No, because the will of the mother takes precedence, or the fetus is not a person, etc', not 'No, the law in california says it isn't' . I couldn't care less what the law actually says, all the questions are about morality, what the law should be.

No, your question was not why is it lawful. It was whether the moral status of the victim was the determinant of its lawfulness. That, after all, is the reason we are having this discussion: because of your query re why the moral status of the victim is irrelevant to self-defense.

couldn't care less what the law actually says, all the questions are about morality, what the law should be.

As I said previously, you are free to argue that the moral basis of Anglo-American criminal law is wrong. But that does not change my point, which has never been about what the law should be, but what it is, ie, that treating Neely's prior acts as irrelevant to Penny's legal culpability is 100% consistent with 100s of years of jurisprudence.

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