A University of Waikato researcher is proposing new ‘degrees of murder’ to help make the criminal justice system fairer for both victims and offenders.
Dr Brenda Midson, senior lecturer at Te Piringa - Faculty of Law, says the current legislation is a blunt instrument, that provides juries with few options. “The system we have now is not actually providing justice.”
The Government is carrying out a wide-ranging review to change what it describes as a broken criminal justice system. Dr Midson says the law needs to be reformed to cope with issues including overcrowded prisons. “There is definitely a call for change, but the question becomes whether that call is to make the system harsher or more compassionate.”
Dr Midson believes that broadening the definitions of murder and manslaughter will allow courts to legitimately recognise all relevant mitigating (and aggravating) circumstances in determining guilt. She argues that three types of cases, in particular, illustrate that presently not all defendants charged with homicide are treated consistently: young defendants who kill; victims of violence who kill their abuser; and defendants who kill children. Defendants within these categories might demonstrate the same degree of moral blame, but the outcomes can differ wildly; or outcomes may be the same for very different degrees of moral blame. Inconsistency means that a fundamental element is missing – the requirement of equality before the law. Dr Midson says that when elements of the rule of law are not upheld, justice is not delivered.
In 2015, 3-year-old Moko Rangitoheriri died in hospital from horrific injuries the toddler suffered over a long period of time. The details the abuse inflicted on him are harrowing, with court records showing his short life was as brutal an existence as his death. That his caregivers were able to plead guilty to manslaughter rather than murder provoked huge public outrage.
Dr Midson says the problem with manslaughter is that it has an association with being unintentional, or less blameworthy than murder. “Other cases where parents kill their children intentionally but are guided by some other force - whether they are impaired in some way or it may be an altruistic killing - can end up with a murder conviction. That has a more serious connotation and is a more stigmatic label to attach to someone. The problem in New Zealand is that our law is particularly limited because we only have murder and manslaughter as options for convictions for homicide and very limited defences. It leaves jurors with few options, and if they have sympathy for the defendant they tend to disregard the law to find an outcome that accords with their sense of moral blameworthiness.”
There’s an irony that Dr Midson points to around the justifiable outrage about child abuse deaths. She says the public tend to be very punitive towards those offenders. “But when it is a young defendant, like a 12 year old, people are equally punitive towards them. So there is that recognition of the vulnerability of the child, and our obligation to look after young people. But when you've got a 10 or 12 year old charged with homicide, there’s disagreement. If you read any kind of social media you’ll see a lot of reaction from people to cases where a young person is accused of a serious crime. Some people claim they knew what they were doing, so they should be tried like an adult. But anyone with teenage children knows what they are like - they don’t always think about what they’re doing and don’t realise the consequences of their actions.”
There are also the cases of women who kill their violent and abusive husbands. Dr Midson refers to the question of whether they will kill again. “No. The killing is a response to a certain set of circumstances that are not going to repeat. It's not like people who go out, get high and get into fights, and kill someone – where violence is a part of their pattern of behaviour. Those are the ones who we need to be cautious of in terms of a risk of reoffending. The problem with young offenders as well, is that once they are in prison they are gone - we’re never going to get them back. So keeping them out of prison is actually doing everyone a big favour.”
The next phase for Dr Midson’s research is an empirical study of what people think about moral blame. Among other things she will ask people to rank the seriousness of different kinds of homicides. “Most people would find euthanasia is not as morally blameworthy as taking a loaded shotgun into a bank and killing somebody. I think there will be some common things coming through but there is also likely to be some disagreement about other cases, such as one-punch killings. Are they as serious as other kinds of manslaughter? Or are they more serious or less serious than murder? We’ll be trying to get some sense around what people actually think.”
The proposed degrees of homicide, manslaughter and defences:
Further details of Dr Brenda Midson’s proposed changes can be found in her thesis: Why did they do it? Moral sensibilities, motivating reasons, and degrees of moral blame in culpable homicide.