Just desserts?

In Kassel the court has spoken, and its words are a stern warning to us all: do not kill and eat people (unless you are prepared to give up eight and a half years of freedom for the privilege).

Yes, the trial of Armin Meiwes, the ‘Rotenburg cannibal’, has come to its end, and I suppose nobody will be very happy at the outcome. The prosecution had demanded a verdict of ‘guilty of murder’, which brings a sentence of life imprisonment (on paper; in reality, a minimum of 15 years before eligibility for release can be considered). The defence by contrast asked for a finding of ‘killing on request’, which bears a tariff of six months to five years. In the event, the court pronounced Meiwes guilty of manslaughter and sentenced him to 8½ years.

With the most obsequious respect to their lordships, this result strikes me as muddle-headed and contemptible. There were some odd things about this case, and they seem to have inspired the court to seek out a via media (as many had predicted they would). But it is worth recalling the words of that eminent Texan philosopher whose name escapes me for the moment: there ain’t nothing in the middle of the road but white stripes and dead armadillos.

It would not, perhaps, go amiss at this point quickly to review the relevant provisions of the Criminal Code. Section 211 declares a murderer to be one who ‘kills a person … out of lust for killing, for the gratification of the sex drive, … or in a brutal manner….’ I’ve left out the bits that don’t seem at first blush to apply to Meiwes’s act, but I do think we can squeeze that act into one or more of the categories cited.

Killing on request, ? 216 Crim. C., is one of those bad laws made by hard cases. It is designed to express public disapprobation of euthanasia while recognising that there are cases where treating the perp as a murderer (with its minimum 15 year tariff) seems grossly inappropriate. Now, you are probably saying to yourself about now, ‘Surely though this wasn’t meant to cover asking to be eaten.’ But if the text of the law is unambiguous on its face, we cannot look past it to enquire what the legislator was thinking. And in this case the text provides a mild sentence for one who ‘is moved to kill by the express and sincere request of the victim.’ The legislator was thinking of mercy killings, but if Meiwes’s action fit the description in the statute, then that is the act of which he may be found guilty, and what the legislator might having been thinking matters damn-all. But the evidence makes perfectly clear that this is not the case. Yes, Meiwes’s dinner companion earnestly sought to serve as dinner. But his request was not needed to move Meiwes to kill him. Meiwes had long and actively sought his meal; the meal’s express and sincere requests were important to him only insofar as he sought a consenting victim, and the consent of the victim does not excuse homicide.

The court took a middle path, finding Meiwes guilty of manslaughter (? 212 Crim. C.). Now, this is not quite as egregiously perverse as it might seem to readers from the Anglo-American tradition. At common law (and in its codified modern descendants) manslaughter has a positive element: it is killing in the heat of the moment (traditionally, in ‘chance medley’) after adequate provocation. The German concept of manslaughter (Totschlag), by contrast, is defined negatively: any killing (that is illegal and without valid defence) that is not murder. Even so, manslaughter looks a false call in this case. Manslaughter German-style requires that none of the elements of murder be present and, as I discussed above, it is hard to see how this could be true here. I believe the judges allowed themselves to be troubled by the unusual fact of the victim’s consent. They shouldn’t have let this trouble them; their judgement is, IMO, wrong as to both fact and law. I imagine the prosecution will appeal (and, in the German system, there may be appeal as to both factual and legal matters).

Note that this is all my first impression, without benefit of having read the opinion. Still, it’s hard to imagine how the judges’ reasoning put on paper would seem any less convoluted and mistaken.

– – – – –

Though I have hard words for the court in this case, I suppose I should tip my hat to the German media. This was a sensational case to be sure, yet there has been little media sensationalism over it. (Without having seen it, I’d bet there was a fair bit of racy reporting in the Bild-Zeitung, but I refer here to media intended for people who aren’t illiterate.) I was in the USA when OJ Simpson allegedly killed his wife and her companion, and during his trial. All American media, it seemed, swiftly made the transition to ‘all OJ, all the time’ format. My agents in America inform me that something similar is going on right now, concerning the trial of a man in California alleged to have murdered his pregnant wife. The German media are to be commended for viewing news as something other than grand-guignol entertainment.

8 thoughts on “Just desserts?

  1. Up to a point, m’lud. Think of this a cultural rather than a literal translation.

    I believe one addresses the court, not the judge, using the honorific ‘Hohes Gericht’. But then I’m not certain; if I ever see a court in action, it would probably be as defendant, and I’d as soon avoid that.

  2. Mrs T.,

    very interesting opinion, Euer Ehren.

    However, I’m not sure about the main point: “the consent of the victim does not excuse homicide.”

    I think this is a new kind of crime for which the current criminal code has no real provision, the judges had to improvise either way. I’m sure there is no straightforward reasoning, how could there possibly be.

    But I think the motivation – alone – does not make a murder and both homicide and manslaughter in my opinion at least somewhat require an involuntary element, a true victim, actually. Express consent makes this very difficult in my opinion. And Meiwes probably would not have killed someone without his clear consent.

    So defining the “meal” as a true victim poses all kinds of problems, on top of all the question about the human “free will”.

    Here’s a paragraph of what I wrote when Meiwes was arrested back in 2002 – the question hasn’t been answered yet. And I guess it would be unfair to expect some judges to do the hard thinking for all of us (even though leaving it to judges is a German tradition…)

    ” – While the deed probably technically qualifies for first degree murder, according to the local prosecutor, I wonder what the legal repercussions of the victim’s taped consent to be killed will be. I suppose, some so far neglected or even undiscovered issues will now attract attention, eg the already questioned human free will (aka real consent), our social norms and abnormal, apparently suicidal sexuality. Clearly, not everything that goes on between two consenting adults in a bedroom (or basement) should be treated as their own business. But in a society in which mutual consent between adults is de facto the only enforced and probably enforceable sexual convention, I can’t help but wonder what should not be regarded as such? And, more importantly, why – based on which principle? I don’t know. But I fear these questions will have to be answered more precisely rather sooner than later. – “

  3. I’m not so sure, Tobias. Consent has always been a defence to battery/K?rperverletzung, but never to homicide. Concededly, the boundaries have grown a bit fuzzy in this crazy mixed-up modern world we live in (which is precisely why, in the mercy-killing scenario, consent, while not excusing, has been seen to justify the new and much less severely punished crime of T?tung auf Verlangen) rather than murder. And in most if not all jurisdictions, suicide is no longer a criminal act.

    If we were to carry this increased respect for personal autonomy (even in the question of disposal over one’s own life) to its logical conclusion, we might have to say, Okay, consent is now in fact an absolute defence to homicide. I’m not certain that we as a society are quite ready to make that leap. But I am fairly certain that we shouldn’t make that leap simply so that Mr Meiwes might satisfy his appetite with impunity.

  4. >I’m not certain that we as a society are quite >ready to make that leap. But I am fairly >certain that we shouldn’t make that leap simply >so that Mr Meiwes might satisfy his appetite >with impunity.

    I agree. I guess all I’m saying is that this is something that actually does fall between the cracks of the code. And as shrinking transaction costs for finding like minded – consensual – partners for even the most absurd activities mean wer’re going to see more of this, I guess it should be addressed by all of us, not just poor judges struggling with prosecutors and defense lawyers trying to reap the most out of this high profile case.

  5. Actually, I don’t think this case does fall between the cracks in the code (which is why I think the verdict incorrect). Subject always to the fact that the court saw the evidence and I didn’t, the facts seem to fulfil the Tatbestandsmerkmale of murder. That’s the first prong in the three-pronged analysis of a criminal act under German law. The second is to test whether the act was illegal (i.e., there is no valid defence or justification of the act, e.g. Notwehr). The third is whether the defendant is capable of being guilty of the illegal act. The court didn’t deny Meiwes’s Schuldf?higkeit, and it sure as hell didn’t think he had a valid defence. The court declined to reach a verdict of murder because it denied that all the elements of murder were present (i.e., in their analysis, a potential finding of murder doesn’t get beyond prong 1).

    And that’s the problem I have with their verdict. I think we clearly see the elements of murder fulfilled here. The court could fail to find thus only because it read into the Tatbestandsmerkmale of murder an element that isn’t there: ‘involuntary victimhood’ as you described it above. In other words, although consent has never before been a defence to murder, with this decision the court made it impossible to murder a willing victim. That is, I would suggest, a fairly revolutionary step. In effect, the court has just amended the criminal code.

    Now, it may be that the code has cracks. But to a court (especially in a non-common law system) those cracks should normally be invisible. If cracks are perceived and thought worth plugging, it is the legislator’s job to plug them (as happened when the new crime of killing on request took mercy killings out of the definition of murder).

  6. Hmm, I think there are merits to having a Tatbestandsmerkmal like “‘involuntary victimhood’. I’m not sure how this could/should be implemented in practice, ie under which circumstances it could preclude an indictment for murder, but I think this Meiwes case was different porecisely because of the “voluntary victimhood”. I can’t exactly tell you why, but that’s the way I see it.

    I think there is far more Richterrecht in Germany than legal theorists would probably like to admit, and due their lack of economic understanding – you know German lawyers still praise the fact that they don’t do maths (iudex non calculat) -, with far worse practical consequences than this case will ever have – in areas like labour markets, and social security.

    Moreover, we have a Parliament that prefers to defer the complicated stuff to the constitutional court for a ex cathedra declaration of what’s in order. Just think of the opposire judicial conclusions in the German Rowe vs. Wade, ?218, in 1975 and in 1993?

    I agree that this is not the way it’s supposed to be, in theory. But looking at the state of “professional” politics in Berlin, I am not too sure anymore…

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