Compassionate Killings: The Case for a Partial Defence
| Author | Heather Keating,Jo Bridgeman |
| Date | 01 September 2012 |
| Published date | 01 September 2012 |
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00921.x |
THE
MODERN LAW REVIEW
Volume 75 September 2012 No 5
Compassionate Killings:The Case for a Partial Defence
Heather Keating and Jo Bridgeman*
The focus of this article is upon compassionate killings, that is, criminal cases where a parent/
spouse has killed or assisted to die a child/spouse who was suffering from severe disabilities,
debilitating injury, chronic or terminal illness. We argue that the partial defence of diminished
responsibility, while appropriate for some cases, fails to acknowledge the compassionate and
relational nature of these acts and thus fails to identify the quality of the harm committed.We also
argue that the general defences of duress of circumstances and necessity, even if they were to be
become available,are inappropriate. Developing the concept of ‘compassion’, which is a consid-
eration in relation to prosecution for assisted suicide, we argue for the introduction of a partial
defence of ‘compassionate killing’which would reduce the offence from murder to manslaughter
in recognition of the killing as a responsive, relational act of care.
INTRODUCTION
Over the last decade, there has been renewed debate about the legality, morality
and practice of ending the lives of those with severe disabilities, debilitating
injuries or chronic or terminal illness. The concern of this article is to examine
the ability of the criminal law to respond appropriately to one specific, and less
explored,type of killing; the compassionate killing of one family member – child,
spouse or parent – by another.Given the extensive literature which has grown up
around the related‘r ight to die’cases of assisted suicide, we do not examine these
in any detail.1Rather, we draw upon the guidelines issued by the DPP for
prosecutors in relation to such cases,2and the consideration given therein to the
compassionate nature of the act, to reflect upon the way in which the human
emotion of compassion, as distinct from pity or mercy,also figures in cases which
are charged as murder.3In doing so, we contrast the way in which some human
*Sussex Law School, University of Sussex.The authors are very grateful to AndrewAshworth,William
Wilson, Stephen Shute and the anonymous reviewers for their insightful comments on earlier drafts of
this article.
1 Nor do we include detailed consideration of the partial defence of killing in pursuance of a suicide
pact under the Homicide Act 1957, s 4.
2 Director of Public Prosecutions, 2010, Policy for Prosecutors in Respect of Cases of Encouraging or
Assisting Suicide at http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html
(last visited 25 April 2012).
3 As did the Law Commission, we confine our consideration to those cases where a partial defence
may be availableto a murder charge, Law Commission No 304,Murder,Manslaughter and Infanticide,
HC 30 (London:TSO, 2006) para 1.5.
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© 2012The Authors.The Modern Law Review © 2012 The Modern Law Review Limited. (2012) 75(5) MLR 697–721
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
emotions, such as fear and anger have found their way into the law’s response to
deliberate killing whilst compassion, an altruistic emotion, has been rejected.
When a person is involvedin the death of another she must account for herself .
But, in our view, because the criminal law lacks a means by which it can identify
and appropriately label cases where the killing was a compassionate response to
the suffering of a loved one,it fails to recognise the complexity of the truth4or the
moral differences between these and other killings.The accused in these cases are
forced to explain their actions within a legal framework into which only some
of them fit, and then only partially, raising the question whether the law is in need
of reform to reflect our moral judgment about family members who kill out of
compassion. In considering the ways in which the cr iminal law can, and should,
deal with compassionate killings we argue that the existing partial defence of
diminished responsibility fails to respond to the emotive yet reasoned, responsive
and relational nature of the act.This results, in some cases, in ‘a travesty of fair
labelling’5in that there is a failure to convey in ‘simple,informative terms . . . the
essential nature of the wrongdoing’.6We explain why development of existing
defences such as duress of circumstances and necessity wouldnot be an appropr iate
response. Our aim, however, is not merely to evaluate the limits of existing
defences but, believing that some killings are appropriately identified as compas-
sionate responses, we present the case for a partial defence to murder of‘compas-
sionate killing’ which would, we argue, hold family members accountable for
responsive acts.The fundamental question which this endeavour poses is: can
the criminal law respond appropriately to compassionate killings?
COMPASSIONATE KILLINGS?: THE RECENT CASES
Our study, of reports in UK National Newspapers since January 2000 using
NEXIS,cross-checked through the LEXIS database for reported appeals,7revealed
eight cases of parents charged with the murder or attempted murderof a ter minally
ill, disabled or chronically ill child. The cases involved nine children whose ages
ranged from four to 31 and their conditions included serious mental health
problems, severe brain damage and chronic ME. In five of these nine cases a
diminished responsibility plea was either accepted by the prosecution or the jury.
In the same period, there were 11 cases of spousal killing and one by a child, Daniel
Gardner, of his elderly parents.All the spouses who killed were men, whose ages
ranged from 58 to 100 and,with two exceptions, had been caring for their spouse
at home, often for many years.
We should note that although the law, as currently framed, draws a clear
distinction between acts of assistance and acts which cause death, it is striking
4 We consider some of the complexities of the cases of parental killing in ‘Intensive caring
responsibilities and crimes of compassion?’ in J. Bridgeman, H. Keating and C. Lind (eds),
Regulating Family Responsibilities (Farnham:Ashgate, 2011).
5 A. Ashworth and B. Mitchell, ‘Introduction’ in A. Ashworth and B. Mitchell (eds), Rethinking
English Homicide Law (Oxford: OUP, 2000) 12.
6 J. Chalmers and F. Leverick,‘Fair Labelling in Criminal Law’ (2008) 71 MLR 217, 229.
7 We acknowledge the limitations of our data: our discussion of criminal trials is in all but two
instances entirely reliant upon media accounts for detail about the cases.
Compassionate Killings
© 2012 TheAuthors. The Modern Law Review © 2012The Modern Law Review Limited.
698 (2012) 75(5) MLR 697–721
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