euthanasia: moral murder mark · euthanasia without either the obfuscation of medical paternalism...

EUTHANASIA: MORAL MURDER

Mark sayers*

The contemporary test for mens realcriminal responsibility catches mercy killing. Yet the courts have a practice of juries being reluctant to convict and of judges treating convicted mercy killers extremely leniently. The anomaly of this situation is explained with reference to the connection between morality and the criminal law. I argue that an appreciation of the classical criteria for murder and the moral opprobrium in which it was held justifies reviving an adapted form of classical mens rea tests where the res gesta includes facts which are currently regarded as irrelevant. I argue that the contemporary approach presumes a "motive-less" understanding of intention which is at odds with the ordinary useage of '"intention". The example of nineteenth-century infanticide cases is given to demonstrate both the precedent for and the viability of this approach.

In the popular mind, "euthanasia" conjures the image of an elderly, terminally ill, lucid patient requesting the assistance of health carers to die now pain free rather than to die later after profound suffering. This paper proposes a different paradigm case for considering euthanasia. The paradigm case employed here is that of spouses who vow to each other that they will never let either of them "become a vegetable", be "put in an institution", "left on a machine", or whatever is there agreed code for what they envision as that worst possible outcome which they would avoid.

* B.A. Hons, M.A.Phi1, Law Student at the University of Queensland.

Euthanasia: Moral Murder 7

In the analysis presented at the end of this paper much will rely on this agreement between the parties as to what constituted this "worst possible outcome". The terms employed there and which the reader is asked to bear in mind when considering this paradigm case are: the distinction between persona and corpus - between 'social death' and 'biological death'- and the proposition that corpus sine persona is not human life in its ordinary sense. Here corpus refers to simply the fact of the body while persona refers to that aspect of life which identifies personality. Social death and biological death parallel biographical life and biological life and refer to the fact that being human is more than simply a matter of evincing vital respiratory statistics, but rather requires self-consciousness and engagement as a self-conscious being with the world.

The main reason for preferring spouse initiated, non-medical euthanasia as the paradigm case is because it is the kind of case which comes before courts. Where the patient, the doctor, the relatives, or a combination of these agree with medical, active, voluntary or non-voluntary euthanasia2 then who is going to complain about the action to either police or the courts ?

For these distinctions the author is indebted to Rachels' and Singer's work in this area. See J.Rachels, The End of Lie, Melbourne, OUP, 1986 at 52-57; P.Singer Practical Ethics, 2nd ed., Cambridge, CUP, 1993 at 85-87, 182, 192-193.

Conscious that "euthanasia" is an umbrella term for a number of quite different fact situations, this paper will adopt certain qualifying terms by which to distinguish between facts situations which attract the term "euthanasia". This paper adopts Kuhse's definitions: "Voluntary" = A requests B to act to kill A for the sake of A; "Non-voluntary" = A is unable to choose between life or death due to a present incapacity and there is no prior indication of A's wishes; "Involuntary",= A's consent is either withheld or not sought by B who acts to euthanise A; "Active" = B does an act which causes the death of A; "Passive" = B's omission/s or inaction causes A's death. See H.Kuhse "Euthanasia" in Singer(ed) A Companion to Ethics, Oxford, Blackwell, 1991 at 2952. Questions can be asked of Kuhse's definitions: Would it not be more useful if the "present" incapacity referred to in non-voluntary euthanasia were "permanent"? What is the utility of "involuntary euthanasia", which seems more akin to murder?

Grifith Law Review (1995) Vo1.4 No.1

Furthermore, this paradigm case lays bare the logic and practice of euthanasia without either the obfuscation of medical paternalism or the sterilising effect of the hospital context. For when a spouse shoots their partner once the diagnosis of Alzheimer's disease in that partner is confirmed, the full force of what euthanasia is about is palpable. Whereas when a person in extremis slips comfortably into death in a hospital after a morphine overdose from their doctor, the similarity of the situation with other medical procedures lessens the impact of what has happened. Thus conclusions about the problematic scenario of spouse initiated, non-medical euthanasia have a greater flow on effect for medical euthanasia than is the case vice versa.

The structure of this paper will be: to present the legal dilemma posed by mercy killing; to explore the connection between morality and law; and to propose reforms for the test of responsibilitylmens rea in the criminal law.

The Legal Dilemma of Mercy Killing

In Euthyphro, Socrates discusses with Euthyphro the agony of choice between conflicting moral principles. Here, Euthyphro's father has handed out rough justice to a servant accused of murder, as a result of which summary handling the servant has died without a trial. Euthyphro is on his way to court to prosecute his father for murder, yet the impious nature of such prosecution is not altogether lost on ~uthyphro.~ Socrates observes that not only do most people not know where the right lies, neither do the gods who quarrel between themselves over the truth.4 In this context, Socrates implies that Euthyphro is wrongly charactensing his father's actions. The

And ought it not be stated that where permission is not sought in "involuntary" euthanasia this means that the permission could possibly have been given, ie. it is not a situation where the deceased lacked capacity to decide ? Yet given their widespread currency, Kuhse's definitions will be adopted here for convenience.

Fowler (ed.), Euthyphro, Cambridge, Harvard University Press, 1947 at 4c-e.

Id at 4a, 7b, 7d, 8a.

Eurhanasia: Moral Murder 9

issue is not, as Euthyphro suggests, that: "Yes -your father murdered the servant but as your father you ought not to prosecute him". Rather the issue, as Socrates frames it, is: "No - your father did not commit a murder, thus there is no cause for prosecution." Socrates demonstrates how, when the gods propose conflicting moral rules (here the duty to prosecute murderers and the duty to respect one's father), one must decide whether a rule is either misguided or does not really apply.

The problem considered in this paper is that under the general law, as classically expressed by Coke, murder is when one "unlawfully kills any reasonable creature in rerum natura under the King's peace, with malice aforethought, either expressed by the party or implied, so as the party wounded or hurt die of the wound within a year and a dayVa5

In Australia, the general law of the High Court is that malice aforethought is implied where a reasonable by-stander would say of the accused that the accused ought reasonably to have known that a probable consequence of their action would be the death of a person even if not of a specifically identified person.6

In ~ueens land ,~ the Criminal Code reads similarly to Coke:

If within a year and a day of the relevant act a person dies and that act was intended to kill or cause grievous bodily harm to either deceased or someone else; or if the act occurs in the prosecution of an illegal purpose and the act was intrinsically dangerous to life; or if the act of poisoning or suffocation occurs; then the perpetrator is guilty of murder.

It is immaterial to the Code whether the accused did not intend to hurt either the deceased or indeed anyone at all. It is also immaterial whether the

E.Coke, Institutes, London, Brooke, 1797 at 47.

R v Crabbe (1985) 59 ALJR417 at 419.

The author's home jurisdiction and used here as an example of the Code states.

10 Grifith Law Review (1995) Vo1.4 No.1

accused did not intend to cause the death or even knew that death was likely to result.8

It is well settled law that the fact the deceased was doomed to die soon in any case due to a pre-existing illness, which illness was neither occasioned nor worsened by the accused's action, does not excuse the a c c u ~ e d . ~ It is equally well settled that a jury's sympathy for the plight of both the accused and the deceased, in for example an active voluntary euthanasia case, is irrelevant and the jury ought not to usurp the sentencing discretion of the judge by opting for a manslaughter conviction where a murder conviction would be beyond reasonable doubt. lo

Police, prosecutors, juries and judges who encounter cases of spouse initiated, non-medical, active voluntary euthanasia often feel tom as did Euthyphro. Similarly, Socrates' solution, as will be shown in the last section of this paper, is also relevant.

That the example of Socrates and Euthyphro is relevant to Australian courts is borne out by Otlowski's survey of mercy killing cases.ll Otlowski eschews the term "euthanasia" both because the facts were non-medical and violent and because euthanasia is largely debated as an issue of medical ethics.12 Of the cases which Otlowski surveyed from 1976-1989, in all of

Qld. Criminal Code ss. 302,284.

Though the facts were ones of child abuse and not euthanasia, the principle is well settled at least as far back as R v Dyson (1908) 2 KB 454.

lo Gammage v R (1969) 122 CLR 444 per Barwick CJ at 452. That mercy has no part to play in the jury's role was expressed by Lucas J thus: there is no "constitutional" right of the jury to return a manslaughter verdict as an alternative to murder simply because the jury wishes to do so out of sympathy for the accused : R v Russell (1973) Qd R 295 at 296.

l1 M.Otlowski "Mercy Killing Cases in the Australian Criminal Justice System" (1993) 17 Criminal Law Journal 10.

l 2 ~ d a t 10.


them either lenient sentencing by the judge or executive clemency nullified the

few guilty verdicts returned by juries. l

The clearest example of Otlowski's conclusions is R v ~0hns tone . l~ There a retired electrician who for years had cared at home for his severely mentally ill wife and who had thwarted her many suicide attempts, electrocuted her in circumstances suggesting her cooperation, when it became clear that he could no longer keep his vow to her of keeping her out of an institution. Bollen J, on receiving a guilty verdict, imposed the mandatory life gaol term but with a non-parole period of 10 days given: a) the prisoner acted out of compassion; b) there was no deterrent value to be achieved with this prisoner of hitherto unblemished record; and c) the community would not gain from the prisoner being gaoled.

When the State's Attorney-General appealed this lenience, King CJ stressed that the courts ought not be blinded by pity:

People cannot be permitted to take life in defiance of the law ... it is the duty of the Courts to impose punishments ... which deter others. l5

King CJ recognised that Bollen J had erred in sentencing but then refused to interfere since he reasoned that such an error did not automatically demand correction. Besides, to now return the defendant to gaol -the appeal taking 6 months to be heard and he'd been released 10 days after trial sentencing- to

do so "smacked of ~ r u e l t ~ " . ~ 6

l 3 Id at 13. l4 Trial unreported S.A Supreme Court 21/1/1987; Appeal reported (1987) 45 SASR

482. l 5 R v Johnstone (1987) 45 SASR 482.

l 6 Idat485.


Johnstone shows how far judges will go to ameliorate the effect of the law.

R v Meares & ~ a n l e s s l ~ shows how far juries can be prepared to stretch belief. Here M solicited W to shoot M's spouse who was terminally ill with cancer. M did not feel that she had to skill to dispatch her husband painlessly and W obliged. The facts were ambiguous as to whether the deceased was privy to this arrangement. Both M and W were found not guilty of either murder, manslaughter, or conspiracy to same on the strength of W's denial of having done the deed despite M's testimony and probative physical evidence.

This state of affairs causes uncertainty which diminishes the quality of the rule of law. The practice identified by Otlowski is that the accused is cast on the fickle waters of individual judges' sympathetic discretion when sentencing. The court practice identified here constitutes, especially in Code states, a kind of judicial activism. And finally, it needlessly foists the emotional and financial traumas of a murder trial onto people whom the law could easily deal with differently. These three problems of lack of certainty; curial usurpation of legislative functions; and avoidable trauma are alone sufficient cause for law reform in this area. l8

l7 Another case surveyed by Otlowski: Unreported NSW Supreme Court (Newcastle - July, 1989).

l8 The greatest flaw in advocating the status quo -in which people are tried for murder, found guilty, but the extenuating circumstances of mercy killing sways the judges/executive's exercise of clemency in sentencing- is that the status quo simply doesn't achieve what it purports to do. The accused is not absolved, they are found guilty and given a nominal punishment by way of the law not being seen to have allowed exceptions to the sanctity of human life. But the accused is not absolved, they are convicted and must bear the discrimination in employment, finance applications, etc., which accompanies criminal conviction. They are effectively told they are not blameworthy but they must bear the stigma of being blameworthy. They do not get to cany around a certificate from the court saying: This person isn't really blameworthy of murder but we had to convict them because of the state of the law.

Euthanasia: Moral Murder

Morals, Mercy Killing and Law Reform

Writing of the Wolfenden Report which recommended decriminalisation in England of both prostitution and consensual homosexual intercourse, Lord Devlin identified an argument common to post-war liberal society: morals are a private matter and the law ought not to enforce religious morals; if a statute is so framed as to censure a victimless crime, then the activity ought be

decrirninalised. l Furthermore, "a state which refuses to enforce Christian beliefs has lost the right to enforce Christian morals" and so the state must

find an independent ratio for the criminal law.20

This "independent ratio" will be a long time coming given that the positivist trend in contemporary jurisprudence looks not to what the law ought be but what it in fact is and thus regards a validly passed law as being its own justification. The need for an independent ratio is of especial urgency for the criminal law which in its present form Lord Devlin described as derivative of

~h r i s t i an i ty .~~ Such a situation is anomalous in a secular society which purports not to endorse a particular religion.

Lord Devlin is not alone in associating Christian morality with the

criminal law. Fay identifies the same association in art.^^ Horder explains the association as the criminal law simply reflecting "..the cultural sig~lificance attributed in our society to a particular relationship between

chance, fate and r e~~ons ib i l i t~" ,~3 while Lacey describes the association thus:

l 9 P.Devlin "Morals and the Criminal Law" in R.Dworkin (ed.) The Philosophy of Law, Oxford, OUP, 1977 at 67,69.

20 Ibid.

21 Id at 72. 22 T. Fay , "Responsibility and the Requirements of Mens Rea" (1984) 14 Reason Papers

59 at 60. 23 J. Horder , "Criminal Culpability" (1993) 12 Law and Philosophy 193 at 214f.


Criminal law in a self-professed democratic society has to operate on the basis of at least a threshold of shared meanings; a critical mass of the population has to see it (the law) as something which promotes non-partisan interests. 24

It is on the strength of such associations that it is submitted that Richards is correct in debunking the "victimless crime" rationale for decriminalising actions and reforming laws that are seen to be moralistic and inappropriate as public law. Richards contends the "victimless crime" argument relies on a utilitarian assessment of both the cost and lost opportunities of devoting police resources to enforcing "moralist" laws. Richards argues that "..if there is a good moral reason for criminalising certain conduct, extraordinary enforcement costs will justly be borne".25 Richards bases this on the possibility for consensual acts to clearly be criminal, eg. duelling, incitement to conspiracy, and sex with a minor. It is submitted that justifiable paternalism can validate such an approach.

Furthermore, it is submitted that those who seek to excise morals from the law have a limited understanding of morals which identifies morals with religious tenets. Such people seemingly forget that public support of the law itself constitutes a kind of positive morality. Thus to excise certain religious moral injunctions from the law is not to amoralise the law but rather simply to change its moral conventions.

These considerations are of particular relevance to euthanasia given that it might reasonably be described as a "victimless crime", especially where it is voluntary. It is arguable that the future non-existence of a person is no more

injurious to them than their past non-existence,26 and thus the non-voluntary euthanasia of the irretrievably incompetent could also be described as a

24 N.Lacey "A Clear Concept of Intention" (1993) 56 Modem Law Review 621 at 640. 25 D. Richards "Constitutional mivacy, the Right to Die and the Meaning of Life" (1981)

222 William and Mary Law Review 327 at 329. 26 J. Rachels, above n.1 at 26.


"victimless crime" except insofar as such deaths infringe the proper interests of others, eg. the deceased's' dependents. It is submitted that with respect to such examples of non-voluntary euthanasia, justifiable paternalistic concerns can supplant a utilitarian analysis of euthanasia and can operate to prohibit non-voluntary euthanasia, eg. where the person has a history of publicly opposing euthanasia. Thus there are instances of euthanasia where Richard's debunking of victimless crimes is relevant and others where it is not -this paper focuses on the latter.

Thus both historically and intrinsically, law -especially the criminal law- reflects and is sourced by notions of morality. A clear example of this linkage is the crime of murder. For not simply the prohibition against killing but also the exceptions of self defence, just war, and capital punishment -which Christian morality recognises - all find a place in the criminal law. In part such linkage represents a conscious effort to achieve "Christendom". In part it simply represents the way in which morality influences the criminal law: we seek consistency between the private and public domains especially insofar as criminal culpability is concemed. As Thomas J observed in Whitworth:

The criminal law attempts to identify those who should be held accountable to society for their actions and it concemed with the

concept of blame~orthiness.~~

More recently, Mason CJ expressed it thus: "(moral culpability) is a core

element of the offence of murder".2g

It is in this context that the law reform of euthanasia can be discussed. This will be done in three ways: the history of the crime of murder and the culpability peculiar to that crime; inadequacies in the contemporary tests for culpability; and a nineteenth century parallel to the contemporary euthanasia dilemma in the courts.

27 R v Whitworth (1989) 1 Q d R 437 at 447. 28 Royal1 v R (1991) 100 ALR 669 at 678.


History of the Common law Crime of Murder

Actus non facit reum nisi mens sit rea: Coke's authoritative statement,

derived from the Leges Henrici ~r imi ,29 influences the criminal law of

common law jurisdiction^.^^ And while the common law dates its self- consciousness from Coke, the theory of mens rea can be traced back to the

Roman law's distinction between casus and ~ul'a.~ Writing soon after Coke, Blackstone characterised mens rea as the major

plea or excuse open to one accused of a criminal charge. Blackstone defined

the defence of mens rea as a want or defect of ~ i l l . 3 ~ Blackstone allowed for three kinds of defect: a) a defect in understanding such as made choice impossible; b) a defect in understanding at the relevant time of relevant facts whether by chance or invincible ignorance; & c) a defect of will due to

constraints or threats which forced the defendant's action.33 As Hart observed, the mental elements required for culpability under the criminal law paralleled the then dominant Christian moral theory that a person was only responsible for their voluntary actions where volition was understood as fully

informed, fully free c0nsent.3~

It is significant that for Blackstone, mens rea has changed from being a quality which the judge seeks to find in the accused to being a defence

29 J . Stephens, A History of the Criminal Law of England, London, Macmillan, 1883 at 94.

30 For an example see the article on Mens Rea in Halsbury's Laws of England vol. l l( l) , London, Butterworths, 1973-1987.

31 A distinction which applied not only to criminal law but also to acts o f negligence: "Essays in Anglo-Saxon Law" (1905) HarvardLaw Review 295.

32 W.Blackstone Commentaries on the Laws of England, 14th ed., London, Strahan, 1803 at 20.

33 Idat21. 34 H . Hart, Punishment and Responsibility, Oxford, Clarendon Press, 1967 at 186.


proposed by the accused. While this is perhaps due to the onus imposed by the common law's adversarial system, it marks the incipient tension between the subjective and objective tests for mens rea. As Blackstone observed:

... no temporal tribunal can search the heart or fathom the intentions of the mind otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot

know.35

Whatever the subjective truth, it is what is shown outwardly which is the basis for judgement.

It is submitted that in time this distinction came to be understood as: only that which is without a subjective dimension is truly objective and it is only the objective which can be judged as criminal or not. With respect to murder, objective evidence of malice aforethought became the test for culpability. Coke had understood malice aforethought as one's compassing to kill, wound

or beat another and one does it sedato an im0 .3~ It was this last element on which the classical common lawyers seized for their "...grand criterion which

distinguishes murder from other killings".37

Understandings of this grand criterion of sedato ~ n i r n o ~ ~ were historically derived and represented a strand of thought present in Norman law. Norman

law regarded murdrum as the hiding of a body after a secret slaying.39 Murdrum signified that the deceased - typically a Norman, but in time it came

35 Above n.32. 36 E.Coke, above n.5 at 50. 37 Blackstone, above n.32 at 198. 38 For example Bracton's implying it of a secret slaying, where committed wickedly &

out of the sight of others so as to prevent a hue and cry. Bracton On the Laws and Custom of England, Harvard, Harvard University Press, 1967 at 379.

39 Pollock & Maitland, The History of English Lau, 2nd ed., Cambridge, CUP, 1968 at 478-487.

18 Grijfith Law Review (1995) Vo1.4 No.1

to apply to any dead person- had been stripped of dignity by being buried without Christian ceremony; without the opportunity for what was then the all important deathbed confession or pre-battle absolution; without opportunity to devise their estate; and killed by cutpurse peasants in circumstances which deprived the deceased of the honour which came from dying in a noble conflict with peers.40

Sedato animo tested whether the killing occurred in the course of an affair of honour, or a spur of the moment brawl, or whether it was the result of careful calculation and planning. Sedato animo reflected that the murderer lay in wait, planned and got ready to waylay the deceased and was not a reflection on the murderer's emotional state at the time of the killing.

Later legislation amplified the original Norman criteria for murder by way of excusing certain other killings as not being murder. Edward I excused killings done in the course of an arrest. Henry I1 excused: killing one's own child when chastising them; killing a lunatic; and killings which were causally remote from the accused's action. Henry VII excused the killing of burglars and highwaymen in self-defen~e.~

It is submitted that the defining characteristic of murder was that it was both an attack upon the honour of the deceased and an indictment of the baseness of the murderer. It is as if the murderer was a coward who would have stood no chance against the deceased in a fair fight. That the deceased should have died by the machinations of such a base fellow only added insult to the injury. That the killerfs would then lack the decency to own up to their actions by attempting to conceal the body and deflect suspicion away from themselves only compounded their guilt.42

40 Murdrum was also the term for the fine imposed on the local parish where the body was found. Ibid.

41 E.Coke, above n.5 at 48-52. 42 To appreciate these characteristics of murder, one has to imagine both a more violent


Thus it was not the fact that one had killed which made one a murderer, nor even the fact that one had killed violently or even for gain. What constituted murder was: a) the intention to act with disregard for the honour of the deceased: & b) one planned ahead and got ready all that was necessary to effect one's plan. It was not simply the facts of how the deceased died which were relevant in establishing mens rea, eg. who cut the deceased's throat. Rather the law took into account a wider penumbra of facts. Facts which were relevant to motive and intention, eg. was the deceased's throat cut in the course of a public brawl-cum-duel in an affair of honour, or was the deceased's throat cut in the course of a robbery in a dark alley. Only the latter case was murder. Such a state of affairs accorded both with contemporary understandings of honour and with the Christian moral theory which identified

guilty hearts as well as guilty acts.43

Modern Mens Rea

Today, mens rea in common law criminal jurisdictions and criminal responsibility in Code jurisdictions are quite different fmm their classical origins. The same terminology is used but different tests are employed. The secularisation of law, the insights of psychology, the development of insanity rules, as well as classical British empiricism's dominance of jurisprudence have all shaped the modem understanding of mens rea. While sedato animo has waned, the technique of inferring malice has waxed. It is submitted that Bentham's work on intention was crucial to this expansion. For Bentharn

and more chivalrous age. It was an age in which violent duelling death were both common and unpunished. It was an age in which a person's honour was regarded as a palpable capital asset.

43 An example is the biblical admonition that even to look covetously at one's neighbour's wife is to commit adultery in one's heart. Thus to be culpable of murder the requisite guilty heart had to be established -the fact of having killed was not enough. Similarly, one could be tried for attempted murder and punished with the full severity of the law as for murder given that one had the requisite guilty heart and only an incompetent hand had left the deed incomplete.


supplied a general empirical test by which to infer malice on the facts of each case, thus superseding reliance on precedent.

Bentham distinguished direct intention (something sought as an end in itself or as means to an end) from oblique intention (merely a foreseeable consequence of one's directly intentional actions). Since 1868 with Desmond, the oblique understanding of intention has been deemed capable of sustaining

a murder charge.44 It is not that direct intention is either irrelevant or inadequate. It is simply that the lower threshold which the oblique intention test represents has been deemed sufficient to infer malice aforethought. Such a test also catches as murder those mercy killings which rely on the principle of double-effect and could well pose a problem for palliative care regimes for

the dying, despite ~ d a r n s . ~ ~

It is submitted that through its use of the lower threshold test of oblique intention, the law's use of "intention" differs from the ordinary usage of

"intention" - ratio to the contrary n o t ~ i t h s t a n d i n ~ . ~ ~

This is obvious when one considers the impact of public policy on the law. The test of the reasonable on-looker is used so as to curtail wanton recklessness: would a reasonable by-stander say that the accused ought reasonably to have regarded the victims' death as a probable consequence of

the accused's actions?47 The net effect of this test for catching wanton

44 A. Kenny, The Ivory Tower, Oxford, Blackwell, 1985 at 75f. 45 For how the test catches the double effect principle see: H.Hart, Intention and

Punishment, Oxford, Clarendon Press, 1968 at 122. Palliative care is where one increases pain relief medication to a point whereby the patient remains both lucid and pain free but their life expectancy is diminished thereby. The ratio in R v A d a m (1957) Crim LR 365 is that a doctor is entitled to administer pain relief even if it means that the patient now dies on "..Monday instead of Tuesday, no people of common sense would say 'oh, the doctor has caused her death'. They would say that the cause of death was the illness". Devlin LJ at 365

46 R v Wilmot, No.2 (1985) 2 Qd R 413 per Connolly J at 417. 47 R v Weare ( 1 840) 4 JP 508 per Coleridge LJ.

Euthanasia: Moral Murder 2 1

recklessness as murder is to lower the threshold yet again beneath even

Bentham's oblique intention requirements.48 Thus Lord Hailsham could say that whether one meant to bring about the death of the victim or whether one

merely ran the risk of that death is "morally indi~tin~uishable".~~

Within the Australian jurisdiction, R v Stuart and Crabbe are authority for the proposition that a superficial empirical analysis of one's actions reveals one's intention and that only those intentions so revealed are relevant and that one intends the reasonably foreseeable, probable consequences of one's

action.50

It is submitted that as a matter of public policy the test as it stands is of great value in catching wanton reckless acts and ascribing criminal culpability to such of them as foreseeably endanger human life. Such an attitude is consistent with that justifiable legal paternalism which seeks to protect the autonomy of citizens from reckless infringement by less responsible members of the community. Nonetheless, it is submitted that to identify mens rea with such a test is both to devalue the worth of the concept of mens rea as well as to leave the courts foundering, as they have been, when confronted with mercy killing. For the contemporary test equates culpability with knowledge: if one knows or is deemed to have ought reasonably known the probable consequences of an action then one is culpable for those consequences. Such an approach both isolates and reduces analysis of the fact situation to the barest empirical level and does not mirror the complexities of life.

48 R v Hyam (1974) 2 WLE 607 per Diplock LJ at 629. 49 Hyam per Hailsharn LJ at 620. 50 The analyses in each case were, respectively: in lighting the fuel canisters stacked in

the foyer of the only access to a nightclub at 3:00 am, ought the accused to have been aware of the probability of killing at least of the nightclub patrons; and, when the accused drove his truck through the wall of a pub during known serving hours, ought the accused to have been aware of the probability of killing a patron ? R v Stuart (1974) 4 ALR 545; R v Crabbe (1985) 59 ALJR 417.

22 GrifJith Law Review (1 995) Vo1.4 No.1

It is on this basis that it submitted that the contemporary test for mens realcriminal responsibility operates with a notion of "motive-less" intention which is not the ordinary useage of intention.

Philosophically, to posit a "motive-less" intention is akin to positing "content-less" universals. Anthony Kenny's evaluation of the judgements in

R v ~ ~ a m 5 l is instructive in this regard. In his ardour to catch wanton recklessness, Hailsham LJ regarded as "morally indistinguishable" the 'intention to bring about p' and 'the intention to bring about the risk of p'. Kenny argues that the resulting "motive-less" intention which Hailsham LJ's ratio implies would have been both obvious and avoidable if the analysis were constructed thus: "Is it that there is no moral difference between the direct intention to do that which exposes a victim to the risk of harm or death and the oblique intention to kill ?" The only way to make sense of Hailsham's judgement is to interpret it as meaning that direct intention is required for malice aforethought despite the judgement's seeming preference for oblique

It is submitted that the modem doctrine of mens rea also conflates what were once two distinct requirements. The modem doctrine implies malice if: a) it is established that the accused is of sound mind; & b) anyone of sound mind could reasonably foresee the probability of a death resulting from the accused's actions. Thus the contemporary understanding of criminal culpability for murder does not require any manifest intention to degrade or strip the deceased of honour, as was the case with classical mens rea. Rather,

51 (1974) 2 WLE 607. The facts here were akin to R v Nichols & Aitcheson (1958) QWN 29 and the problematic killing "in the prosecution of an illegal purpose" (Qld. Criminal Code, s.302[2]). Here H, on becoming aware of her spouse's extramarital affair, visited at night the marital home of her rival and stuffed newspapers through the frontdoor letter box, doused them in petrol, and set them alight. H's intention was to frighten her rival from the neighbourhood with a small f i e . What in fact happened was that the house became an inferno from which the rival escaped but her two children died.

52 A. Kenny, above n.44 at 13-14,22-25,29.


culpability is now satisfied by acting with what a reasonable by-stander would deem should have been one's knowledge of the probable lethal

1 consequences of one's actions. The criminal law conflates sound mind and I the probability of foreseeable harm with malice aforethought to arrive at the

intention proper to murder.

It is submitted that the anomalies which arise from this approach when courts are confronted with mercy killing cases highhght deficiencies in the doctrinaire empiricist epistemology which underpins the approach. Thus while one could make specific reforms to exempt mercy killing from the test, e.g. by way of allowing into evidence "living wills" which absolve the accused53, it is submitted that total reform of the tests for mens realcriminal responsibility is preferable given the flow on effects for other fact

situations.54

The Lost Opportunity for Reform

McSherry's survey of nineteenth-century infanticide cases reveals evidence of juries and judges reasoning in a way which was inconsistent with the tests then for mens re^.^^ The statutes then required that where infanticide was proven, the jury could return an alternative verdict of "concealment of birth where there was any doubt that, at the relevant time, the foetus was not truly independent of the woman. Thus if part of the foetus' foot was still not clear of the womb at the time when the child was killed and if the woman attempted to hide the corpse, then a verdict of concealment could replace a murder

-

53 D. Lanham, Taming Death by Law, Melbourne, Longman, 1993 at 89-90. 54 This approach would make more workable evident iq concerns about the res gesta of

criminal cases. A clear example of this will be given in the next section concerning nineteenth-century infanticide cases.

55 B.McSheny "The Return of the Raging Hormones Theory" (1993) 15 Sydney Law Review 292.

24 GrifJith Law Review (1995) Vo1.4 No.1

verdict. Thus there was a rebuttable presumption - not a total excuse-

available on the facts of i n fan t i~ ide .~~

McSherry argues that in a period when 50% of women under the age of 26 were unmarried and many worked as live-in domestic servants, such women were vulnerable to both rape and unwanted sexual affairs with their male employers. Given the negligible efficacy of both contemporary contraceptive practices and abortions, many of these women fell pregnant and carried the child to term. Yet the birth marked them as "fallen women", rendering them unemployable as servants in respectable homes and probably unmaniageable as well. Where a woman in such a predicament killed the child at birth, juries were slow to convict. And when they were convicted, judges were quick to commute the automatic death penalty to a life gaol term. Yet at the same time as they did this, both judges and juries wondered out loud about moral laxity and whether the floodgates were being opened by their actions.57

The similarities of these cases with contemporary mercy killing cases such as Johnstone and Meares & Wanless are obvious. The infanticide problem was practically dissolved by safer, more reliable and accessible contraception

and abortion techniques.58 Similarly, the adoption of new euthanasia techniques could well by-pass the legal dilemma which mercy killing cases

56 It is important to note that McSheny's work does not focus on mens rea tests -which is its use here. McSheny's work focussed on the chauvinist presumption that only hysterical females could ever commit violent crimes, ie. that violent crime is something of which normal females are incapable. Thus when a woman committed a violent crime, nineteenth-century juries sought evidence of hysteria to explain the action although such a search for motivation was not required by law.

57 B.McSheny, above n.55 at 300-302. 58 The practical resolution did not imply a legal resolution. That this was the case is

seen in R v Walker (1915) St R Qd 115 where the defendant "abortionist" claimed that the child was already dead in the womb and that he had merely facilitated its expulsion.


pose the courts.59 It is submitted that before and if technology does remove the problem from the courts, it would be helpful for contemporary courts faced with mercy killing to consider the ratiocinations of nineteenth-century courts faced with infanticide.

When confronted with mercy killing, contemporary courts parallel those of the last century in taking into account a wide penumbra of surrounding circumstances. But whereas in the last century this was part of the jury's role, contemporary courts only consider this when sentencing mercy killers.

Last century, the analysis customary to murder trials which consistency demanded ought to have been adopted in the infanticide cases was: "Did the woman throttle the newborn, did she know that she was doing this, and did she know that the death of the baby could result therefrom ?" Instead the analysis seemingly adopted in the infanticide cases was: "What was the woman's marital and economic status? What was the likely paternity of the child? What consequences would have followed for the woman's marital, social and economic status if she'd had the child openly? What is the

woman's moral ~ h a r a c t e r ? " ~ ~

This thinking not only parallels Socrates' re-definition of Euthyphro's dilemma but also ascribes to what might be called moral facts the objective

status which Socrates also ascribed them.61

59 One thinks of both the Kevorkian "death machine" where the terminally ill simply flick a switch and the Oregon State referendum (1994) allowing doctors to prescribe lethal drugs for terminal patients who would then self-administer the drug.

60 B.McSherry, above n.55,300-302.

For Socrates it is not as if morals qua ideas were simply subjective, cerebral phenomena. Rather ideas and thus morals were facts as blunt as the fact of the court order of execution and the existence of the hemlock which Socrates faced. When given the chance to flee rather than die, Socrates had to weigh up the idea of who he was and his moral integrity. If he fled he risked ridicule for lacking conviction in his beliefs. If he fled, would it be the 'real' Socrates that survived or just some hollow

26 Griflth Law Review (1995) Vo1.4 No.1

While Blackstone had argued that no human tribunal could judge the heart but only the actions of an accused and while that had since been developed by empiricist influenced jurisprudence into an examination only of objective facts, the infanticide cases of the last century reveal a different approach. There the moral character of the woman and the practical impact of the dilemma which she faced -where she was a put upon serving girl who was faced with the disgrace of being a "fallen woman": unmarriageable and unemployable in service because of her male employer's unconscionable sexual indiscretion- were not regarded as subjective, psychological phenomena Rather, the empathy of the court for her plight led to an understanding of why she felt compelled to act as she did. The jury were probably as horrified as she that life had come to such a necessity. And judge and jury together sought to absolve her of homicidal culpability as some sop of fellow feeling.

It is submitted that the penumbra of facts constitutive of the res gesta in contemporary mercy killing cases be similarly enlarged. It is submitted that it is neither without precedent nor irrational to give probative weight to facts which are not directly evident in the action of killing, laying as they do outside the narrow focus of Bentham's test for intention which equates lmowledge of probable consequences with motive. Given that motivation defines our peculiarly human teleology, at least in the sense that to our freedom is ascribed responsibility, it is only natural to regard as probative the motivational dimension of an action which the criminal law seeks to censure. Such an approach constitutes a kind of positive morality in the tradition of

caricature of the man, the persona, which he had been ? Thus to feel that he was being true to himself, Socrates reasoned that he must stay. For Socrates these ideas of himself were facts of the same weight as more obviously objective facts in the world. See Fowler (ed.) Crito, Cambridge, Harvard University Press, 1947 at 47e, 48b, 50d, 51c, 52d, 53a, 54c and Fowler (ed.), Phaedo, Cambridge, Harvard University Press, 1947 at 62c, 70-71,117a.

Euthunusiu: Morul Murder 27

' v i r t u e - t h e ~ r ~ ' . ~ ~ And in the tradition of Socrates, it is not unreasonable to say that our motivation is capable of being inferred from facts and is not a purely subjective, psycho-spi ri tual phenomenon beyond the rational determination of our peers.

It is in this context that Lord Devlin's "independent ratio" becomes relevant. For the character of that ratio would determine what would be included from the penumbra of surrounding circu~nstarlces i11 this expancied rrs xestu. It is submitted that one possible ratio, one fou~lded neither on utility nor natural law, would be the common threshold shared by a critical mass of the population: namely, the freedom, autonomy and equal status of citizens in a liberal demcxracy. An example of the kinti of analysis which could flow from thls ratio when applied to mercy killing would be ...

On the facts, was the deceased faced with either the threat of or actual diminution of persona ?

Were the tieceased and the accusecl ad idem that loss of persona left them as gc~)c,tl as dead, ie. that 'social death' was as significant to them as 'biological death'?

Was there a request by the deceased for eudlanasia'!

Was there duress as between the parties or were there

irrelevrult concerns pressuring either of the parties'! 63

62 'Virtue-theory' is an ethical theory which traces back to Aristotle's cmcerns for phro~~esis and c~uci(~imonia. The criteria for ethical actic.)n is the disposition c.)f the actor: does the action contribute to the growth in maturity and wisclom c.)f the actor ? Did the actor act purely out of regard for the best interests of all concerneci '? Does the actor hecome an ethical her~)/moclel for others ? See Ross (ed.) Nirorncjc~hecln Ethics, Loncton. OUF', 1954 at 1094h 11-27, 1094a 1-3.1 174a 7-8, 1104h 4-6 7-8, 1140a 9-10 20-21. 1105h 5 12-18,1144h 26-28, 1143h 4.

63 Irrelevant concerns heing concerns not directly relevant to the best interests of the deceased understooci as a free, autonomous, equal citizen.

28 Griffith Law Review (1995) Vo1.4 No.1

Was the accused conscious of wanting to kill the deceased painlessly and, where the deceased was competent, at a time of mutual choice?

Where the accused can affirmatively establish all these questions then what results is a rebuttable presumption in their favour of lacking the required mens realcriminal responsibility relevant for murder.

Such an analysis reflects the connection between morality and the criminal law both as to blameworthiness and what can be accepted by a critical population mass of a liberal secular democracy as a bare threshold of values - namely, the need to protect the autonomy and equal status of all citizens. The analysis is derivative of the historical understanding of murder as a loathsome, unjustified killing and clearly delineates euthanasia from that understanding of a blameworthy deed. The analysis is based on the moral example of Socrates and critiques the narrow empiricism of modem jurisprudence. And finally, the analysis represents a degree of consistency between the ordinary useage of words and their legal meaning which the law craves and yet does not achieve.

euthanasia: moral murder mark · euthanasia without either the obfuscation of medical paternalism...

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