Grace Millane murder - do we believe the accused?

[catsmate]

This is basically what I was trying to say in all my earlier wittering on.

Oh please you do yourself disservice.

I think my personal disgust with these types of activities may have come through and clouded my message. I didn't mean for that to happen. There are lots of things that disgust me that I still believe should be perfectly legal and acceptable for people who like them.

Well we'll disagree about this; my SO's and I are active BDSM practitioners.

That said the acts describes are BDSM in the generally accepted sense being unsafe and (frankly) rather insane.

 

[catsmate]

yup, here's the actual law...

Murder defined
Culpable homicide is murder in each of the following cases:
(a) if the offender means to cause the death of the person killed:
(b) if the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not:(c) if the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he or she does not mean to hurt the person killed:
(d) if the offender for any unlawful object does an act that he or she knows to be likely to cause death, and thereby kills any person, though he or she may have desired that his or her object should be effected without hurting any one.

b) is a pretty good case in this one as causing injury through strangulation is likely to cause death and is reckless.

I think that's quite debatable. I don't see any evidence for actions that would plausibly be described as "bodily injury that is known to the offender to be likely to cause death".
I see stupidity and recklessly unsafe behaviour, but I don't see the intentional infliction of injury of that type.

 

[Butter!]

Oh please you do yourself disservice.


Well we'll disagree about this; my SO's and I are active BDSM practitioners.

That said the acts describes are BDSM in the generally accepted sense being unsafe and (frankly) rather insane.

I've hung around the scene. I just don't personally get down with the idea of the more hardcore stuff, chokings and beatings and knifeplay, but I don't think there's anything wrong with people who do. The idea just gives me the willies. Watching someone eat a sandwich slathered in ketchup gives me the willies as well, though.

Theprestige reacted somewhat poorly to what I was saying, so I assumed my personal feelings must have come through in my post. But they are entirely irrelevant to what went down between these other two people.

Since you are a fan of the scene yourself, I'd be curious to know - do you agree with what I'm saying, that a dom has essentially a "sacred" duty to keep their partner safe above all else? That's where it seemed like this guy ****** up, badly enough (in my opinion) to possibly constitute murder.

 

[catsmate]

I think his entire story stinks to high heaven. But I don't think the possibility of a young woman from a respectable background being experience in "kinky sex" is all that remote these days. There's the internet. There's the popularity of Fifty Shades of Grey. There's the fact that she had been a student, presumably living on campus, for at least three years. And there's the fact that she was on a solo backpacking trip.

I'd say it was at least within the realms of possibility.

It never was, back to Kinsey's 3%...

The Richters, Grulich & de Visser study (Aus, 2003) found that "2.2% of men and 1.3% of women between ages 16–59 years had engaged in BDSM activity during the previous year". Flash forward sixteen years and the interest in BDSM is over 45% and regular practitioners around 7.5% (Holvoet, Huys & Coppens; Bel, 2018) with fantasy rates at ~70%.

I'm not aware of a recent Australian study but the Renaud & Byers study of Canadian university students seems plausibly applicable and found that:

• 72% of men and 59% of women had had fantasies of being tied up
• 65% of men and 58% of women had fantasies of tying up a partner
• 60% of men and 31% of women indicated positive thoughts of whipping or spanking someone
• 44% of men and 35% of women indicated positive thoughts of being whipped or spanked

 

[Butter!]

Well, I hope nobody ever looks at my search history, because I've been googling "how long does it take to die of strangulation" and stuff like that. It's as I thought - most sources are saying that it can take five minutes, although unconsciousness occurs long before that. I'm fairly uninitiated in this type of play, and I'm the first to admit it. So maybe I've got this wrong. But I'm having trouble understanding how a properly caring and attentive dom could keep going for that long after his partner was already unconscious. He must have been horribly careless, at best.

At worst, he was turned on by her dying and couldn't make himself stop even when things had gone too far. And many possibilities lie between those two points. None of them make him look very good in my mind.

 

[Elaedith]

At worst, he was turned on by her dying and couldn't make himself stop even when things had gone too far. And many possibilities lie between those two points. None of them make him look very good in my mind.

I would say what he is alleged to have done afterwards doesn't look good.

 

[Butter!]

It never was, back to Kinsey's 3%...

The Richters, Grulich & de Visser study (Aus, 2003) found that "2.2% of men and 1.3% of women between ages 16–59 years had engaged in BDSM activity during the previous year". Flash forward sixteen years and the interest in BDSM is over 45% and regular practitioners around 7.5% (Holvoet, Huys & Coppens; Bel, 2018) with fantasy rates at ~70%.

I'm not aware of a recent Australian study but the Renaud & Byers study of Canadian university students seems plausibly applicable and found that:

• 72% of men and 59% of women had had fantasies of being tied up
• 65% of men and 58% of women had fantasies of tying up a partner
• 60% of men and 31% of women indicated positive thoughts of whipping or spanking someone
• 44% of men and 35% of women indicated positive thoughts of being whipped or spanked

See, all that stuff sounds pretty good to me . It's just the more violent play that scares me. But again, I truly don't make a value judgment beyond "yikes, not my thing." Until someone gets killed, and then I guess I start to sound a little judgy. But I'm not judging the activity itself so much as someone who enjoys it to the exclusion of caring about someone else's life.

 

[Vixen]

It never was, back to Kinsey's 3%...

The Richters, Grulich & de Visser study (Aus, 2003) found that "2.2% of men and 1.3% of women between ages 16–59 years had engaged in BDSM activity during the previous year". Flash forward sixteen years and the interest in BDSM is over 45% and regular practitioners around 7.5% (Holvoet, Huys & Coppens; Bel, 2018) with fantasy rates at ~70%.

I'm not aware of a recent Australian study but the Renaud & Byers study of Canadian university students seems plausibly applicable and found that:

• 72% of men and 59% of women had had fantasies of being tied up
• 65% of men and 58% of women had fantasies of tying up a partner
• 60% of men and 31% of women indicated positive thoughts of whipping or spanking someone
• 44% of men and 35% of women indicated positive thoughts of being whipped or spanked

The operative word here is 'fantasies'.

I can recall the punk era when many of my friends frequented the Roxy and the Embassy. Bondage tartan trousers, nose and tongue clips, shiny PVC, etc. Doesn't mean it translated into inflicting pain on each other during sex, Sid Vicious aside. I do recall Depeche Mode raising a few eyebrows with Master & Servant.

 

[theprestige]

See, all that stuff sounds pretty good to me : D. It's just the more violent play that scares me. But again, I truly don't make a value judgment beyond "yikes, not my thing." Until someone gets killed, and then I guess I start to sound a little judgy. But I'm not judging the activity itself so much as someone who enjoys it to the exclusion of caring about someone else's life.

You're still trying to convert negligence to murder-by-default. Nowhere else in law is this principle recognized or applied.

A surgeon has a sacred duty, but when someone dies on the operating table we don't call it murder just because we can't discern his motive. A skydiving instructor has a sacred duty, but when he mis-packs his student's parachute we don't call it murder just because we can't discern his motive.

People engage in risky behavior and get each other killed through negligence all the time. Negligence is not murder. I think it's a serious failure of justice to conflate the two the way you are trying to do.

Criminal negligence? Yes. Murder? Not unless you can prove intent. Which is a separate thing from negligence.

---

As to whether your position is motivated by distaste for the activities themselves... Do you feel that death by negligence should always be prosecuted as murder in the absence of a clear intent? Or is it only in cases of carelessness during BDSM play?

 

[Butter!]

You're still trying to convert negligence to murder-by-default. Nowhere else in law is this principle recognized or applied.

A surgeon has a sacred duty, but when someone dies on the operating table we don't call it murder just because we can't discern his motive. A skydiving instructor has a sacred duty, but when he mis-packs his student's parachute we don't call it murder just because we can't discern his motive.

People engage in risky behavior and get each other killed through negligence all the time. Negligence is not murder. I think it's a serious failure of justice to conflate the two the way you are trying to do.

Criminal negligence? Yes. Murder? Not unless you can prove intent. Which is a separate thing from negligence.

---

As to whether your position is motivated by distaste for the activities themselves... Do you feel that death by negligence should always be prosecuted as murder in the absence of a clear intent? Or is it only in cases of carelessness during BDSM play?

I asked you before if you really don't see a difference between negligently continuing to choke or beat a person you have in a helpless position and other types of negligence, such as packing a parachute wrong. You never answered.

I think there is a difference, because in the former case, it's not just a single whoopsie. It's an ongoing, active, physical beatdown of some sort.

Now, you're right about the intent part. And that is crucial. But still, something like this surely deserves a higher charge than someone whose actions caused a workplace accident. Intent gets greyer when you're actually choking someone within an inch of their lives and cross over. That's how I see it, anyway.


What do the laws say about whether or not someone can consent to be assaulted, anyway? Does that vary by location?

 

[Matthew Best]

I have no idea about New Zealand, but in the UK that was one of the main points of contention about Operation Spanner.

A resulting House of Lords judgement, R v Brown, ruled that consent was not a valid legal defence for actual bodily harm in Britain

 

[Fixit]

I would say what he is alleged to have done afterwards doesn't look good.

That influenced me in the beginning but other evidence reduced that, someone noted that his complete and disastrous attempt to hide the body (which he later guided police to) shows he had little forethought as to some disaster potentially following.

His defence has been inspired. It is of much interest if whether he takes the stand or not. In his interview he spoke about vomiting - an indication of shock.

 

[Elaedith]

That influenced me in the beginning but other evidence reduced that, someone noted that his complete and disastrous attempt to hide the body (which he later guided police to) shows he had little forethought as to some disaster potentially following.

His defence has been inspired. It is of much interest if whether he takes the stand or not. In his interview he spoke about vomiting - an indication of shock.

I wasn't thinking it was (if accurate) evidence of premeditation, more as an absence of normal moral emotions (which might also increase the likelihood of not having paid attention to or responded normally to signs of distress during the incident).

 

[Fixit]

I have no idea about New Zealand, but in the UK that was one of the main points of contention about Operation Spanner.

A resulting House of Lords judgement, R v Brown, ruled that consent was not a valid legal defence for actual bodily harm in Britain

Not sure in NZ, know of prosecutions for assisted death. There are possible elements of manslaughter here. Perhaps counsel should have inquired from the Crown what elements in the evidence were seen to lift the charge to murder although it's something NZ police commonly do which arguably increases the risk of an inappropriate verdict on the wrong charge. Counsel may consider asking the Court to reduce the charge - a request which in itself suggests guilt for manslaughter but not murder. From memory such requests would happen in chambers in order that it doesn't influence the Jury. Here, I think from the opening pleadings which I took little notice of, the defence will look for an acquittal but perhaps expect the worst case scenario to be a conviction for manslaughter.
Looking at what the defendant said about his drinking, and the apparent drinking they did as a couple - alcohol played a significant role. If so where did he, they, lose the capacity to predict what might 'ensue?'

 

[Vixen]

That influenced me in the beginning but other evidence reduced that, someone noted that his complete and disastrous attempt to hide the body (which he later guided police to) shows he had little forethought as to some disaster potentially following.

His defence has been inspired. It is of much interest if whether he takes the stand or not. In his interview he spoke about vomiting - an indication of shock.

Sure. That's why he threw away her phone.

He also watched porn afterwards and took dirty pictures.

Crocodile tears. Anyone can claim they vomited and screamed, 'Grace, Grace!' like it was a complete surprise.

 

[LondonJohn]

I think his entire story stinks to high heaven. But I don't think the possibility of a young woman from a respectable background being experience in "kinky sex" is all that remote these days. There's the internet. There's the popularity of Fifty Shades of Grey. There's the fact that she had been a student, presumably living on campus, for at least three years. And there's the fact that she was on a solo backpacking trip.

I'd say it was at least within the realms of possibility.

I'd agree.

But I'd also say that he pretty much damned himself with his changing stories. Having originally claimed that she left the hotel of her own accord, I think it's highly likely* that he only changed his story when he was confronted with evidence in the form of CCTV footage from the hotel showing her entering but never leaving.

And, frankly, I think that any jury in the world would find it nigh-on impossible to believe that - HAD she died accidentally during kinky sex as he then claimed - he would have gone out to buy a large suitcase and a shovel, hire a car, wheel her body out of the hotel in the suitcase, drive her body to the countryside outside Auckland, and bury her (still within the suitcase). Panicking if one actually does discover a sex partner has died accidentally in these circumstances is one thing. But the carefully-crafted lengths that he went to in this case went (IMO) way, way beyond the actions of a panicking man who'd chanced upon the accidental death of a sex parner.

I'd say that the combination of 1) his changing stories (with the changes only forced upon him by the presentation to him of evidence which disproved his original story), and 2) the carefully premeditated steps he took to transport and dispose of Millane's body, make his case for innocence - or even any case for manslaugher - very weak indeed. Provisionally, I'd say he's factually guilty of her murder.


* This may actually have come out in the trial - I haven't followed it closely enough to know for sure.

 

[theprestige]

I think his entire story stinks to high heaven. But I don't think the possibility of a young woman from a respectable background being experience in "kinky sex" is all that remote these days. There's the internet. There's the popularity of Fifty Shades of Grey. There's the fact that she had been a student, presumably living on campus, for at least three years. And there's the fact that she was on a solo backpacking trip.

I'd say it was at least within the realms of possibility.

Do you know anything about 50 Shades? Reading it actually makes you less experienced at BDSM. If that was her source of truth, no wonder she's dead.

 

[Rolfe]

No. I don't know anything about it at all beyond maybe a paragraph I saw quoted somewhere to poke fun at it. And I don't really remember that in any detail.

 

[Fixit]

Sure. That's why he threw away her phone.

He also watched porn afterwards and took dirty pictures.

Crocodile tears. Anyone can claim they vomited and screamed, 'Grace, Grace!' like it was a complete surprise.

You seem to be mistaking the discussion of possibilities as some sort of challenge?

That he was trying to avoid being caught was most likely the reason he threw away his phone, moved the body and didn't ring emergency services. That seems pretty clear.

You must have missed the evidence that he admitted that he and Grace took photos of one another. The time of the photos in respect as to when Grace died, isn't clear. There was a claim they were after she died, but that now isn't clear.

They may, or may not have been crocodile tears. I'm sure once he made the claim that he vomited had police found he did not would have been used against him - as a major indication that he was still lying 'after he came clean.'

I'm not positional about my opinion. I've already changed my mind once, and may again. At the moment he had one partner who said she was happy with the way the accused pressured her neck, the next claimed she wasn't happy with - she had a boyfriend and exchanged some 700 texts with the accused after their hookup. The accused's second statement to this point has not been derailed. The police would want to show he lied in his second statement but their case is closed and that did not happen. The first witness Monday is meant to be a forensic pathologist. A rumour circulates that a former boyfriend of Grace's may give evidence.

 

[Fixit]

I'd agree.

But I'd also say that he pretty much damned himself with his changing stories. Having originally claimed that she left the hotel of her own accord, I think it's highly likely* that he only changed his story when he was confronted with evidence in the form of CCTV footage from the hotel showing her entering but never leaving.

And, frankly, I think that any jury in the world would find it nigh-on impossible to believe that - HAD she died accidentally during kinky sex as he then claimed - he would have gone out to buy a large suitcase and a shovel, hire a car, wheel her body out of the hotel in the suitcase, drive her body to the countryside outside Auckland, and bury her (still within the suitcase). Panicking if one actually does discover a sex partner has died accidentally in these circumstances is one thing. But the carefully-crafted lengths that he went to in this case went (IMO) way, way beyond the actions of a panicking man who'd chanced upon the accidental death of a sex parner.

I'd say that the combination of 1) his changing stories (with the changes only forced upon him by the presentation to him of evidence which disproved his original story), and 2) the carefully premeditated steps he took to transport and dispose of Millane's body, make his case for innocence - or even any case for manslaugher - very weak indeed. Provisionally, I'd say he's factually guilty of her murder.


* This may actually have come out in the trial - I haven't followed it closely enough to know for sure.

As I wrote above the defence has the opportunity to say he told the truth in the 2nd instance and to this point he has not been exposed as having lied. He's either gone from thick to clever, or he panicked. Premeditation? Where did it start, when he panicked, or later? He clearly hadn't planned to kill a woman he'd never met, we know of 1 partner who was quite 'happy,' another that claimed not to be but whose subsequent behaviour indicated otherwise. If he was going to kill Grace deliberately where was he going to take his next date?

My opinions on this are tempered by not having read 50 shades of Grey and being surprised by these sort of hookups - the reason I question whether there is some kind of algorithm encoded in the Tinder 'advertising' for partners. Again, 1 who wanted to have her neck pressured, 1 who claimed she didn't then a 3rd we may never know about.

Monday will be interesting. I think the man is Australian by the way.