Causing Grievous Bodily Harm: Mens Rea; Intention
| DOI | 10.1350/jcla.2006.70.2.131 |
| Published date | 01 April 2006 |
| Author | Michael Bohlander |
| Date | 01 April 2006 |
| Subject Matter | Federal Court of Justice of Germany (Ordinary Jurisdiction) (Bundesgerichtshof—BGH), 1st Criminal Senate |
Federal Court of Justice of Germany
(Ordinary Jurisdiction)
(Bundesgerichtshof—BGH), 1st
Criminal Senate
Causing Grievous Bodily Harm: Mens Rea; Intention
Case No. 1 StR 65/05, 12 July 2005
The victim, E, was the youngest of three daughters of the two defen-
dants; she had been born in 1988. The family lost their home in 1997
and had to live in several holiday homes from then on. They sealed
themselves off from the outside world, the children no longer went to
school, and at some stage the Youth Authority took charge and sent
them to a children’s home for four months in 1999. At that time the
children were already showing signs of serious physical and psycho-
logical disorder. In September 2000, the defendants lost their parental
rights of custody of the children, who were hospitalised in a closed
juvenile mental institution, because all three of them suffered from a
psychiatric disorder. At the time, the oldest daughter, aged 17, weighed
28.6 kg, the 15-year-old 32.6 kg and E at 12 years weighed 24.8 kg. They
had to be taken to special children’s clinics several times on an emer-
gency basis and fed intravenously or by way of a feeding tube. E showed
a generally retarded reaction and could not urinate. On 24 December
2000, the defendants were allowed to visit their daughters and im-
mediately abducted them. They were found and arrested about three
weeks later and subsequently spent several months in pre-trial deten-
tion, the children were returned to clinics. Following an expert report,
the defendants regained parental custody in June 2001 with the proviso
that the health of the children had to be checked on a regular basis.
However, the defendants only presented the children once, at the end
of June 2001, and all efforts by the Youth Authority to gain access to the
children and to check their health failed. In September 2002, the Au-
thority filed a motion with the local court to order the compulsory
presentation of the children to a doctor, and the court granted the
motion over a year later in October 2003. The defendants appealed
against that order and assured the Youth Authority on 14 October 2003
that E would present herself to a doctor of her own free will. On 21
October 2003, the State Supreme Court (Oberlandesgericht) stayed the
execution of the order. Yet on the date indicated by the father, 26
October 2003, E failed to appear. The defendants applied on 3 November
2003 for an extension of time to supply reasons for their appeal, which
was granted until 5 December 2003.
Since the order for medical examination had been made, E’s health
had deteriorated dramatically because she was afraid that she would be
taken to a children’s home or clinic again and be separated from her
family. She hardly ate or drank any more, and any attempts by her
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