Homicide and Non-Fatal Offences: Mens Rea
| Author | Michael Bohlander |
| Published date | 01 December 2006 |
| Date | 01 December 2006 |
| DOI | http://doi.org/10.1350/jcla.2006.70.6.482 |
| Subject Matter | German Federal Court of Justice (Bundesgerichtshof—BGH), 4th Criminal Senate |
(Bundesgerichtshof—BGH),
4th Criminal Senate
Homicide and Non-fatal Offences: Mens Rea
Judgment of 16 March 2006, Case No. 4 StR 536/05
The defendant was charged with first-degree murder based on the actus
reus alternative of insidiousness (Heimtücke) of s. 211 of the Criminal
Code (Strafgesetzbuch—‘StGB’), but convicted of simple assault (Körper-
verletzung) under s. 223 StGB. The trial court held that she had no intent
to kill and that she had had no foresight within the ambit of s. 227 StGB,
the offence of assault occasioning death (Körperverletzung mit Todesfolge).
She was also acquitted of a charge of administering poison or another
noxious substance under s. 224 StGB for similar lack of mens rea.
The defendant had forced her four-year-old daughter to eat, as a
punishment, a bowl of chocolate pudding to which the child had, in her
mother’s absence, added roughly 30 g of salt, thinking it was sugar. The
accused became angry about what her daughter had done and forced
her, against the child’s vociferous protests and shows of revulsion, to eat
the whole bowl, including the 30 g of salt, recognising and accepting that
this would cause the girl stomach upset, bellyache and that she might be
feeling sick. What she did not know was that eating an amount of
0.5–1 g of salt per kilogram of body weight will usually have lethal
consequences. The girl at that time weighed 15 kg. Her condition
immediately deteriorated at an alarming rate and within about an hour,
on her arrival at the hospital, the daughter had become comatose;
within 35 hours the child had died.
The defendant received a suspended sentence of one year and two
months’ imprisonment. The prosecution, the accused and the private
prosecutor appealed.
HELD, DISMISSING THE APPEALS OF THE ACCUSED AND THE PRIVATE
PROSECUTOR AND UPHOLDING THE APPEAL BY THE PROSECUTION IN PART,
that the trial court had rightly refused to enter a conviction for s. 227
StGB for lack of the...
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