Comment on Assignment 4

Comment on the Native American Killing a Wendigo:

In this case, it is important to make a distinction between excuse and justification. If the defense claims justification on the basis of self-defense or defense of others, as some of you arguing on this side did, it means that the defendant did the right thing given the circumstances and his state of mind. The problem with this is, as most of you on the other side noted, that there was no immanent danger and the defendant chased the victim. Also, keep in mind that there are no “degrees” of justification, if a justification is used successfully it leads to an acquittal.

If the defense argues excuse, they are going for less punishment. There is a good chance that today the defense could argue for a “cultural defense,” which lessens the punishment. In this defense it has to be proven that there is indeed a cultural belief that makes the defendant less responsible, and this is usually treated as an excuse. An excuse lessens punishment, so in proportion as the defendant is less responsible he or she may receive less punishment. This can be manslaughter instead of murder, and punishment may be reduced all the way down to probation.

One may argue, as some of you did, that the defendant lacks the mens rea requirement, namely that he never intended to kill a human being, but his intention was to kill a monster. If the mens rea requirement is lacking, the prosecution cannot even make a case. The problem here is that the defendant chased and killed the victim intentionally, so here we need a definition of the scope of mens rea, whether it pertains to the intention to kill, or whether it pertains to the defendant’s perception of the nature of the victim, which could again lead to a cultural defense.

Just on a side note: Killing a monster is an act that routinely occurs in action and horror movies, and the audience typically not only approves of this action, but deems the person killing the monster a hero. – Think about it next time you see an action movie.

When I gave this assignment, I withheld some information. The assignment was based on a real case in Canada, Regina v. Machekequonabe (28 O.R. 309 [1897]). In this case the victim was the defendant’s father. Why do you think I withheld that information? Do you think a judge would withhold this information?  Why or why not?