Tinkering With the Definition of Murder

Last month we reported on the lenient treatment accorded an Austrian Turk who tried to kill his wife. The court found that the attempted murder was “in the main, understandable”, due to inherent cultural differences that predispose Turks to respond with violence when emotionally upset.

The Austrian Ministry of Justice now proposes a change in the law covering manslaughter and murder, while denying that its proposal has any connection with the case of the murderous Turk. JLH has translated the latest on the topic, and offers these observations:

From Austria, here is the Justice Minister’s latest eccentricity. Despite my usual sympathies, the only sensible comment I see comes from the Greens.

This really is “ideological nonsense.” Bandion-Ortner offers the Christian example of religiously motivated violence and, on the other hand, defends the verdict in the trial of a Turk who has lived in Austria for almost thirty years and still tried his level best to kill his wife in the most savage manner imaginable. The would-be murderer was excused on the grounds of his “understandable emotional state,” by saying that there were other factors. Like what? That the wife was too terrified to testify? That the son who threw himself on his mother’s bleeding body was only injured and not killed?

With the “right” combination of parties in power, this has the potential of unleashing a reverse Inquisition.

Here is JLH’s translation of the article from Vienna News section of ORF on February 3, 2010:

Law

“Religious violence” as an aggravating factor

Although a direct connection to the controversial manslaughter verdict is denied, Minister of Justice Claudia Bandion-Ortner wants changes in criminal law. “Religious violence” is to be an aggravating factor in the future.

“Murder is murder”: no new crimes

The court would be compelled to impose stiffer sentences after a corresponding verdict. Bandion-Ortner rejects the possibility of new punishable crimes or higher possible sentences for, for example, forced marriage or “honor killing.” “We know everything we need to know from the facts of the case. Murder is murder. We cannot give more than a life sentence.”

Specifically, Bandion-Ortner is considering expanding the list of “aggravating factors” in the criminal code by one: “religiously-motivated violence.” Beyond that, it could be established that, “religious motives can never be a mitigating factor.’

As guideline to severity of sentence

Mitigating and aggravating factors serve the courts as a guideline in setting a sentence after the verdict. They can be used within the prescribed limits for the given offense to increase or decrease the length of the sentence.

Overall behavior also considered

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“Overall behavior whose purpose is to force on someone a lifestyle not in conformance with our society” may also be defined as an aggravating factor. Bandion-Ortner gives as an example parents who forbid their children to attend school or have contact with men.

A corresponding “compulsion” could automatically be classified as a “severe compulsion” with a longer sentence. The aggravating factor would then apply for any form of religiously motivated violence, not only in the context of Islam, but also for a “dangerous threat” by Christian fundamentalists against an abortion clinic.

Manslaughter verdict: you have to see the entire act

Bandion-Ortner does not acknowledge this change of law as a direct reaction to the sensational manslaughter verdict in the case of a Turkish-born man. It was attested before the court that the Turk was in an understandably violent emotional state. Therefore he was indicted and convicted of attempted manslaughter instead of attempted murder.

Bandion-Ortner emphasized that, according to her information, there were also other grounds arguing for manslaughter in this case. The minister defends the court: “Anyone who does not know the specific case should not judge the verdict.” Therefore, the amendment is “not a reaction to this verdict.”

FPÖ [Austrian Freedom Party] and BZÖ [Alliance for the Future of Austria] for it, Greens against

The FPÖ and the BZÖ welcome the Justice Minister’s suggestion. However, FP representative Susanne Winter calls for more supervised residences for female immigrants.

BZÖ judiciary spokesman, Ewald Stadler welcomes the Minister’s proposal, but asks for greater protection for religions from denigration.

Judiciary speaker for the Greens, Albert Steinhauser, perceives “ideological nonsense.” Honor killing or genital mutilation are already illegal. Cultural or religious background has no place in the code of law.

Rejection by the Religious Community

Criticism comes from the Islamic religious community in Austria (IGGiÖ). The wording is “misleading and counterproductive,” announced spokesperson Carla Amina Baghajati on Wednesday.

“Acts like forced marriage, honor killing and feminine genital mutilation can in no case be legitimized religiously,” declared Baghajati. Violence against women can be combatted by severe condemnation through reference to Islamic sources.

Baghajati encourages the dropping of “religiously motivated.” In its place, she suggests the internationally established concept, “harmful traditional practices.”

Discussion of the elimination of “Manslaughter”

Justice Minister Bandion-Ortner is at least willing to discuss the suggestion of the association of judges that manslaughter be replaced by “understandably violent emotional state” as a mitigating factor in murder.

The minister is skeptical of this and points out that manslaughter exists “in almost all European law codes.”

Wien.ORF.at; February 2, 2010

The controversial manslaughter verdict in Vienna could sooner or later cause a change in the law. Deliberations about “adjustment” in the Ministry of Justice have been confirmed.