Grace Millane murder - do we believe the accused?

[Butter!]

Let me remedy that oversight:

I see many differences, but also many similarities. I'm basing my assessment on the similarities: It's a legal activity. It's a voluntary activity. It's an activity that requires trust. It's an activity where carelessness or incompetence can get someone killed. It's an activity where, absent a clear indication of intent, it's impossible to discern negligence from murder.


That almost makes the parachute scenario worse. Packing a parachute is a specific thing that has to be done right one time. You're doing it calmly, methodically, at your leisure.

Compare that to an amateur act of consensual passion, between two enthusiastic but untrained partners. I'd argue that the skydiver has a much greater burden of negligence, simply because his circumstances admit a much greater degree of mindfulness in the act.


That's not how I see it. Negligence is negligence. I think that a charge of negligence should be easier to prove in cases of violent sex play (and packing a parachute), simply because it's the kind of activity that a reasonable person would understand they had to be careful about. But I don't think a charge of negligence should be replaced by a higher charge.


I'm sure it does. But sex play occupies a weird place in our society. We criminalize a lot of kinks we probably shouldn't. And people are gonna get it on however they like to get it on. We don't consider consensual sodomy rape, even though some jurisdictions make it illegal to consent to sodomy.

I guess you're right. I can't really come up with a coherent reason why you're not, other than this scenario feels different to me (which is obviously not skeptical). I think this brutish cad is evil and disgusting - based on the things he did afterward - but being evil and disgusting is not a crime in its own right. Once I start probing for the actual, specific crimes in this whole mess, it becomes harder to defend my position without invoking "special sex rules," which is not enlightened.

It still seems to me as though a reasonable person should have had a chance to see that he was going too far in hurting Grace, but some medical information has been posted that has made me a little less certain on that account. We'll see what the courts say, I suppose.

 

[LondonJohn]

Let me remedy that oversight:

I see many differences, but also many similarities. I'm basing my assessment on the similarities: It's a legal activity. It's a voluntary activity. It's an activity that requires trust. It's an activity where carelessness or incompetence can get someone killed. It's an activity where, absent a clear indication of intent, it's impossible to discern negligence from murder.

Here's a hypothetical question which is only peripherally related to our case, but which deals with this idea of "consent" and whether there are limitations to this:

Suppose two people (A and B) decide to settle a property dispute by means of an old-fashioned duel. That's to say they take two loaded handguns, stand back-to-back, take twenty counted paces away from each other, then turn and shoot. They both consent to this act. A shoots B dead. The entire act is witnessed reliably by dozens of people who are willing to testify, and it's been filmed on dozens of cameraphones.

What crime (if any) should A be justifiably convicted of? These were two consenting adults, remember....

 

[theprestige]

I guess you're right. I can't really come up with a coherent reason why you're not, other than this scenario feels different to me (which is obviously not skeptical). I think this brutish cad is evil and disgusting - based on the things he did afterward - but being evil and disgusting is not a crime in its own right. Once I start probing for the actual, specific crimes in this whole mess, it becomes harder to defend my position without invoking "special sex rules," which is not enlightened.

It still seems to me as though a reasonable person should have had a chance to see that he was going too far in hurting Grace, but some medical information has been posted that has made me a little less certain on that account. We'll see what the courts say, I suppose.

That's about where I'm at. I don't really think there should be "special sex rules", but I do think that some kinds of sex play are special - that is, they require special care. So I'm definitely in favor of looking at charges of criminal negligence for this kind of thing. But not charges of murder, unless intent can be shown.

 

[Nessie]

Murder in New Zealand, as defined on the national legislation site;

http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM329311.html

"167 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."

That makes NZ murder a broader definition than in the UK, as it crosses into what would be a manslaughter charge here, whereby there is an act that was not intended to kill, but it still caused a death.

 

[Butter!]

That's the sticking point for me - the gap between unconsciousness and death.

If I could be convinced that this gap is just a couple of seconds, then it would be easier to think of this as an accident. But if the point of the activity is to give the recipient some kind of pleasure, then there's absolutely no point in continuing after she's passed out, and the guy should stop as soon as that happens, not continue for as long as it takes for her to actually die.

Unless HE's still getting some sexual pleasure from it, in which case lock him up.

But maybe I'm just a prude.

Yeah, this has been the sticking point for me as well. I accept that I may have some information wrong (I'm definitely not an expert in choking people out), but how could he not notice that she had gone limp? Why on earth would he keep going?

So then my mind says, well, there IS a fetish for sex with unconscious people. It exists in several forms, and it's generally called somnophilia. It might have a different name for scenarios in which it's combined with forms of violence. Not sure. It's been ages since I studied that stuff. But anyway, if dude was into that fetish on top of the choking, it's quite possible that he got carried away and continued on past the point of reasonable safety precautions. That makes the crime much worse, in my fervent opinion. But how could it be proven? Are we bordering on thoughtcrime? That would probably be the defense.

This is a mind ****.

 

[LondonJohn]

I guess you're right. I can't really come up with a coherent reason why you're not, other than this scenario feels different to me (which is obviously not skeptical). I think this brutish cad is evil and disgusting - based on the things he did afterward - but being evil and disgusting is not a crime in its own right. Once I start probing for the actual, specific crimes in this whole mess, it becomes harder to defend my position without invoking "special sex rules," which is not enlightened.

It still seems to me as though a reasonable person should have had a chance to see that he was going too far in hurting Grace, but some medical information has been posted that has made me a little less certain on that account. We'll see what the courts say, I suppose.

Oh but the defendant's post-death actions in this case DO play a crucial part in any assessment of his guilt. Any jury is wholly entitled to ask itself whether a person who had come across the death of a sex partner as the result of a genuine accident and who panicked because he didn't know what to do and worried that he would be blamed..... would choose, after many hours and plenty of consideration, to travel out to hire a car and buy a large suitcase, place the body of the accidentally-dead partner into the suitcase, transport her body in the suitcase out through the lobby of the hotel, drive out of the city, pick up a shovel on the way, bury the body in the countryside, clean and return the hire car, and act as if nothing untoward had happened (including under police questioning until confronted with evidence of his lies). Oh and go on another Tinder date the very next evening.

Any jury is wholly entitled in law to consider whether those are the acts of an innocent person, or whether those can only be the acts of a guilty person seeking to avoid detection of his crime. And the jury's determination on this matter can legitimately form a significant part of its reasoning when it comes to the final verdict. Of course the jury will be asked to consider the physical evidence and other factors as well, but don't disregard the judicial significance and relevance of defendant's post-death acts just because they may seem like a "soft" judgement call.

 

[LondonJohn]

Murder in New Zealand, as defined on the national legislation site;

http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM329311.html

"167 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."

That makes NZ murder a broader definition than in the UK, as it crosses into what would be a manslaughter charge here, whereby there is an act that was not intended to kill, but it still caused a death.

No, it's actually pretty identical to the UK (England&Wales) definition.

E&W law carries precisely the same provision for "intending to cause significant injury" but which instead results in death. This is a wholly-necessary legal provision. Because otherwise, for example, a defendant in a murder-by-handgun case could (reasonably) claim "Oh yeah, I pointed my gun at the victim's chest and pulled the trigger, but I only intended to puncture his lung and put him in hospital for a few weeks, to teach him a lesson! I didn't intend to actually kill him!" And it would be functionally impossible to prove otherwise.

Manslaughter does not require intent to kill or seriously harm. That's the difference.

 

[theprestige]

Here's a hypothetical question which is only peripherally related to our case, but which deals with this idea of "consent" and whether there are limitations to this:

Suppose two people (A and B) decide to settle a property dispute by means of an old-fashioned duel. That's to say they take two loaded handguns, stand back-to-back, take twenty counted paces away from each other, then turn and shoot. They both consent to this act. A shoots B dead. The entire act is witnessed reliably by dozens of people who are willing to testify, and it's been filmed on dozens of cameraphones.

What crime (if any) should A be justifiably convicted of? These were two consenting adults, remember....

I'm not sure I understand the "whether there are limitiations" part of the question. Our society does in fact place limitations on activities that knowingly and intentionally cause death to the participants.

Whether there should be limitations, I don't have an answer, other than Chesterton's fence: We have a longstanding consensus that trial by combat is not something society needs. I guess we should stick with that tradition until we can figure out why we have it and why it's a good idea to drop it.

Our traditions about sex are somewhat messier and less well-regulated, but in general the idea is that whatever two consenting adults do in the bedroom is their business. As long as they're not setting out to kill each other on purpose. If someone dies apparently by accident, then an investigation is probably appropriate. Because sometimes it looks like an accident when it's really murder.

 

[Rolfe]

He's in danger of being caught by (b) but I don't think it's a slam-dunk.

 

[LondonJohn]

I'm not sure I understand the "whether there are limitiations" part of the question. Our society does in fact place limitations on activities that knowingly and intentionally cause death to the participants.

Whether there should be limitations, I don't have an answer, other than Chesterton's fence: We have a longstanding consensus that trial by combat is not something society needs. I guess we should stick with that tradition until we can figure out why we have it and why it's a good idea to drop it.

Our traditions about sex are somewhat messier and less well-regulated, but in general the idea is that whatever two consenting adults do in the bedroom is their business. As long as they're not setting out to kill each other on purpose. If someone dies apparently by accident, then an investigation is probably appropriate. Because sometimes it looks like an accident when it's really murder.

I asked in order to create a frame of reference.

So, moving forward. Suppose two consenting male sex partners, in the privacy of their own bedroom ("their own business", according to your point above....) consent to giving each other sexual fulfilment by inserting multiple aubergines (eggplants) up within each other's rectums and large colons. Suppose that A forces a third large aubergine into B, but that causes B's colon to rupture and ultimately causes B's death from abdominal sepsis. The entire act is captured on cameraphone which is available to the State.

Should A be charged with (and, for the sake of argument, convicted of) any criminal offence? If so, what offence?


(NB I'm not merely trying to play semantics games here: I'm trying to establish ethical and judicial boundaries, which will hopefully then help us to assess the case in hand more appropriately....)

 

[theprestige]

I asked in order to create a frame of reference.

So, moving forward. Suppose two consenting male sex partners, in the privacy of their own bedroom ("their own business", according to your point above....) consent to giving each other sexual fulfilment by inserting multiple aubergines (eggplants) up within each other's rectums and large colons. Suppose that A forces a third large aubergine into B, but that causes B's colon to rupture and ultimately causes B's death from abdominal sepsis. The entire act is captured on cameraphone which is available to the State.

Should A be charged with (and, for the sake of argument, convicted of) any criminal offence? If so, what offence?


(NB I'm not merely trying to play semantics games here: I'm trying to establish ethical and judicial boundaries, which will hopefully then help us to assess the case in hand more appropriately....)

I'm really not interested in hours and hours of painstaking, one-sided Q&A. How about you take a turn, tell us what you think the offense should be, and why you think so.

 

[Samson]

He's in danger of being caught by (b) but I don't think it's a slam-dunk.

The summing up by justice Moore may be critical. As I said earlier he prosecuted Renee Chignall and Neville Walker 3 times for the murder of Peter Plumley Walker until they were acquitted. The case was somewhat different in that the autopsy allegedly discovered a tiny grain of sand in his lungs which allowed the police to claim he was alive when thrown off the Huka falls, but of course it is now universally accepted they panicked when confronted with a dead body, the result of having a ciggy and cup of coffee while he was left semi asphyxiating. They then drove 200 miles with his body in the boot.

I am not suggesting this suggests a bias at all, but the parallels are curious.

 

[LondonJohn]

I'm really not interested in hours and hours of painstaking, one-sided Q&A. How about you take a turn, tell us what you think the offense should be, and why you think so.

Oh right. OK.

Manslaughter. Negligence. OK?

But clearly I'll stop at this point, seeing as we're in no danger of making headway....

 

[theprestige]

Oh right. OK.

Manslaughter. Negligence. OK?

But clearly I'll stop at this point, seeing as we're in no danger of making headway....

I think we're making a lot of headway. I just don't enjoy making headway by a process where you ask all the questions and I answer them.

 

[Fixit]

You are conflating this with drink driving which is a criminal offence in New Zealand. Choking for enhanced eroticism is not currently legislated against, so engaging while drunk is not apparently the business of the state.
Because of witness 1, I am currently of the view this was an accident as claimed. I also heard all testimony from witness 2 who engaged in completely consensual activity until he "sat" on her. She had drunk a bottle of wine minus possibly a glass he may have drunk. Unpacking all that is ultimately for the jury.
I reckon he will take the stand.

Not sure choking by consent is not legislated against in NZ it could probably be attempted to be covered by an assault charge if one person decided the other had gone too far, same with whipping I guess. But certainly not clear.

 

[LondonJohn]

I think we're making a lot of headway. I just don't enjoy making headway by a process where you ask all the questions and I answer them.

Well it was only two questions up to that point.... but anyhow....

I think another relevant area of reference here may be the way a country such as the UK (E&W)* deals with the law in the case of so-called assisted dying. The law here states that even if a person has a terminal, irreversible illness from which they are suffering intolerable pain and/or loss of dignity**, they cannot in effect give consent for someone else to assist in the ending of their life.

So even if a person in such a condition signs, for example, a competently-witnessed statement, recorded on camera, stating that they wish to end their life and giving me permission to prepare and administer a lethally-toxic substance to them with the intent of it ending their life (either immediately thereafter or at a time in the future when their condition has reached a specified level), I could - and almost certainly will - be successfully prosecuted for that person's murder if the act is carried out within this jurisdiction. E&W law currently does not draw any distinction between such a terminally ill person giving me their "consent" and any other person giving me their "consent".

In a very real sense, E&W law is stating that no human being can actually give consent - informed or otherwise - to dying from the actions of another person. It's not a dissimilar argument from that of a child being unable to give consent to engage in sexual activity. The law basically says that in either case, there's no such concept as consent when it comes to injurious acts of these sorts being inflicted upon those types of people. In another parallel, it's against the law for anyone (not just a doctor) to maim another person, even if that other person expressly gives "consent" for the maiming).

And so I'd go so far as to say that there's actually no such thing as "consent" for even so-called-consenting adults to perform injurious acts upon each other. And one such act would (IMO) be mutual choking into unconsciousness. Even choking someone into unconsciousness (but no further) carries risks to the long-term health of that person, up to and including brain damage. Therefore I'd argue that at the very least, the defendant in this case could be convicted of either Grievous Bodily Harm or Actual Bodily Harm.

But, as I've written already, the fact (QED) that his choking/smothering of Millane went way beyond unconsciousness, to the extent that (IMO) the defendant must have known that his continuation of constriction/pressure carried with it the probable outcome of very serious injury or death, I'd judge that the medical evidence alone in this case indicates murder.

(I'd further argue that the defendant's various acts in the wake of Millane's death are incompatible with his claims of her having suffered an "accidental" death and his panicking and being in fear of being wrongly blamed, but are instead only compatible with the acts of a man who knowingly caused her death and subsequently tried to cover it up and distance himself from it with lies and deception - but that's a separate (though obviously relevant and additive) point to the medical/consent matters under discussion at this moment)



* I have not sought out the corresponding NZ legislation (or, more accurately, lack of separate legislation) in this area, but a) I'd be surprised if it wasn't currently similar to that in E&W, and b) irrespective of (a), the E&W legislation still stands as an example in its own right of what jurisdictions can have to say in certain areas of alleged consent.

** I strongly disagree with current E&W law in this respect: I think euthanasia should be legal, albeit under extremely tight and well-regulated guidelines and safeguards. But that's by-the-by.....

 

[LondonJohn]

Not sure choking by consent is not legislated against in NZ it could probably be attempted to be covered by an assault charge if one person decided the other had gone too far, same with whipping I guess. But certainly not clear.

True. Again, it would be an effort to find - by exclusion - what NZ legislation has to say about these sorts of acts. But I'd venture to suggest that, as Aus and NZ law has tended to evolve in a similar manner to E&W law in these sorts of areas, I'd say it's a reasonable starting point to suppose that the current law is the same as that in E&W: that is to say that there's no such thing as "consent" by one adult to have physical injury inflicted upon himsellf/herself by another.


I remember watching a TV programme some years ago about a small group of people in the UK who have a peculiar (and extremely rare) mental health condition in which they grow to hate certain of their body parts - usually, it seems, either hands, arms, feet or legs - and desire to have the offending body parts amputated. The ones who carried it through had to go to certain states in the US where judicial precedent had already been set under the ambit of it being safer for a surgeon to carry out the amputation procedure correctly rather than have the person risk serious injury or death by trying to do it (or get it done) themselves, plus the fact that it was seen as a way of treating the mental health issue. In the UK, anyone performing such an amputation would certainly have faced serious criminal charges.

 

[Fixit]

Well it was only two questions up to that point.... but anyhow....

I think another relevant area of reference here may be the way a country such as the UK (E&W)* deals with the law in the case of so-called assisted dying. The law here states that even if a person has a terminal, irreversible illness from which they are suffering intolerable pain and/or loss of dignity**, they cannot in effect give consent for someone else to assist in the ending of their life.

So even if a person in such a condition signs, for example, a competently-witnessed statement, recorded on camera, stating that they wish to end their life and giving me permission to prepare and administer a lethally-toxic substance to them with the intent of it ending their life (either immediately thereafter or at a time in the future when their condition has reached a specified level), I could - and almost certainly will - be successfully prosecuted for that person's murder if the act is carried out within this jurisdiction. E&W law currently does not draw any distinction between such a terminally ill person giving me their "consent" and any other person giving me their "consent".

In a very real sense, E&W law is stating that no human being can actually give consent - informed or otherwise - to dying from the actions of another person. It's not a dissimilar argument from that of a child being unable to give consent to engage in sexual activity. The law basically says that in either case, there's no such concept as consent when it comes to injurious acts of these sorts being inflicted upon those types of people. In another parallel, it's against the law for anyone (not just a doctor) to maim another person, even if that other person expressly gives "consent" for the maiming).

And so I'd go so far as to say that there's actually no such thing as "consent" for even so-called-consenting adults to perform injurious acts upon each other. And one such act would (IMO) be mutual choking into unconsciousness. Even choking someone into unconsciousness (but no further) carries risks to the long-term health of that person, up to and including brain damage. Therefore I'd argue that at the very least, the defendant in this case could be convicted of either Grievous Bodily Harm or Actual Bodily Harm.

But, as I've written already, the fact (QED) that his choking/smothering of Millane went way beyond unconsciousness, to the extent that (IMO) the defendant must have known that his continuation of constriction/pressure carried with it the probable outcome of very serious injury or death, I'd judge that the medical evidence alone in this case indicates murder.

(I'd further argue that the defendant's various acts in the wake of Millane's death are incompatible with his claims of her having suffered an "accidental" death and his panicking and being in fear of being wrongly blamed, but are instead only compatible with the acts of a man who knowingly caused her death and subsequently tried to cover it up and distance himself from it with lies and deception - but that's a separate (though obviously relevant and additive) point to the medical/consent matters under discussion at this moment)



* I have not sought out the corresponding NZ legislation (or, more accurately, lack of separate legislation) in this area, but a) I'd be surprised if it wasn't currently similar to that in E&W, and b) irrespective of (a), the E&W legislation still stands as an example in its own right of what jurisdictions can have to say in certain areas of alleged consent.

** I strongly disagree with current E&W law in this respect: I think euthanasia should be legal, albeit under extremely tight and well-regulated guidelines and safeguards. But that's by-the-by.....

"(I'd further argue that the defendant's various acts in the wake of Millane's death are incompatible with his claims of her having suffered an "accidental" death and his panicking and being in fear of being wrongly blamed, but are instead only compatible with the acts of a man who knowingly caused her death and subsequently tried to cover it up and distance himself from it with lies and deception - but that's a separate (though obviously relevant and additive) point to the medical/consent matters under discussion at this moment)"

"who knowingly caused her death and subsequently tried to cover it up"

Equally he could have accidentally caused her death and knowingly (in terms of being panicked) tried to cover up. It's a big leap from that to 'knowingly caused her death.'

I struggle to put the accused into the role of ultimate predator with such poor planing that followed. I also struggle with the notion that Grace was so active in apparently putting herself at peril. I think that falls to the explanation today that it is more difficult for those my age to comprehend such random hookups, The other side is that it is people going about their own business. This is the first case of its kind in NZ for a generation at least, people will be at the moment be going about their lives as they decide while we debate a trial in which a Jury may be unable to reach a verdict.

 

[LondonJohn]

"(I'd further argue that the defendant's various acts in the wake of Millane's death are incompatible with his claims of her having suffered an "accidental" death and his panicking and being in fear of being wrongly blamed, but are instead only compatible with the acts of a man who knowingly caused her death and subsequently tried to cover it up and distance himself from it with lies and deception - but that's a separate (though obviously relevant and additive) point to the medical/consent matters under discussion at this moment)"

"who knowingly caused her death and subsequently tried to cover it up"

Equally he could have accidentally caused her death and knowingly (in terms of being panicked) tried to cover up. It's a big leap from that to 'knowingly caused her death.'

I struggle to put the accused into the role of ultimate predator with such poor planing that followed. I also struggle with the notion that Grace was so active in apparently putting herself at peril. I think that falls to the explanation today that it is more difficult for those my age to comprehend such random hookups, The other side is that it is people going about their own business. This is the first case of its kind in NZ for a generation at least, people will be at the moment be going about their lives as they decide while we debate a trial in which a Jury may be unable to reach a verdict.

Well firstly, I entirely agree that the actual jury in this case may interpret things in a whole number of different ways. I'd also readily admit that since a) I've obv not been in the courtroom during the whole trial, and b) I've only followed reports of the trial sporadically and recently, I may be way out in my own interpretation.

But

I still stand by my belief that the defendant's actions post death do not at all seem compatible with the actions of someone who came across a consensual sex partner who'd suffered an accidental death. I completely agree that it's reasonable to imagine that someone in such a position might have panicked and been scared of being blamed. But to me that's entirely incompatible with 1) going out to buy a large suitcase and hire a car, stuff the person's body into the suitcase and wheel it through the hotel lobby to the car, drive out of the city, picking up a shovel on the way, bury the body still within the suitcase, clean and return the hire car, act as if nothing has happened, lie to the police about everything when first questioned, and only change that lie of a story when confronted with hard evidence proving the lie; and 2) (and worse, IMO), carrying through with going on another Tinder date the very next night.



Incidentally, another very important point to consider is that (IIRC) the defendant claimed to have come across Millane's body at some point after their sexual encounter, to find her lying dead on the bed with blood coming out of her nose. BUT we know that, whatever version of events is true, she was choked or suffocated to death by his hand. So it's a total certainty that Millane must have been lifeless, limp and unresponsive (and not breathing) at the very moment the defendant removed his hands from her throat or face. So if we accept his claim in this respect, we have to accept that he walked away with zero concern from a limp, lifeless, unresponsive and non-breathing partner at the end of the sexual encounter.... and then only realised something was wrong when he came back into the room to "discover" that she was dead. I cannot believe that for a second. I think he's lying.

 

[Elaedith]

So if we accept his claim in this respect, we have to accept that he walked away with zero concern from a limp, lifeless, unresponsive and non-breathing partner at the end of the sexual encounter.... and then only realised something was wrong when he came back into the room to "discover" that she was dead. I cannot believe that for a second. I think he's lying.

Didn't he claim that he didn't discover this until the next morning, as her body was on the floor? That would require that her dead body somehow managed to get transferred from the bed to the floor. But I may not have been keeping up with all the story changes.