Criminal Law Parricide Research Paper PDF

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A research on Parricide in regard to criminology, A research on Parricide in regard to criminology...

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LWA219 Criminology - Assignment 2 – Research Paper - Due Date 28 th May 2017

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The disorganised mind: A case study of parricide – How the psychological,

physiological

and

sociological

aspects

are

the

determinant of a defence of mental incompetence.

The following paper will first begin with elucidating the nature of parricide, looking at the individual offender and his/her actions that has been considered an horrendous act of abuse and murder against parents and other family members, giving reference to how it was perceived prior to the 20 th century, and how it continues to be a subject of considerable significance. Most research tends to draw a comparison between young offenders and older offenders, considering the motives behind each group considering the differing elements associated. It will also discuss gender of both offender and victim with the intent to dissect and analyse the causation and justifications offenders place on their actions. Mental health is a vast field within the realm of health together with law enforcement, the justice system, and criminology. The human mind can only take so much pressure and throughout some of these cases we can see that abuse could have been a trigger for the commitment of such release from the pressure put upon them. Other cases revealed high profile families, seemingly well to do, and happy in the context of their lives. That is where it stops and the mind of the mentally ill steps in, no thought processes would appear to be ostensive or logically clear. This essay will further discuss the psychological, physiological and sociological aspects of parricide and the incompetence to stand trial by way of mental illness.

LWA219 Criminology - Assignment 2 – Research Paper - Due Date 28 th May 2017

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Hillbrand et.al (1991) argues that parricide destroys the very core of human values regarding family virtue.

These arguments are specific to ‘…the

prohibition against murder and the prescription about honoring parents.’ 1 Byoung-Hoon Ahn asserts that in Korea the murder of a parent in one of extreme nature particularly in a society such as Korea and China where there is the Confucian concept that ‘shakes “filial piety”…an important Confucian precept.’2 In many Asian countries, with particular reference to Korea, respect for ones elders is:

‘…encoded and codified at all levels of society, from the use of honorifics to ancestor worship in shaman rituals. Consistent with the principles of Confucianism, elders are revered in all aspects of social and moral life. South Korean criminal statute codifies this filial respect, for it designates offenses against parents and elders as egregious violations of the social order.’3

According to Gabbiani (2013) in early Chinese history, parricide was considered the most significant of crimes within the family structure; where punishment

for

such

a

horrendous

crime

against

a

parent

was

dismemberment ‘…through the renowned surplice of “slicing” or “death by a thousand cuts.”’4 Gabbiani adds under statute 319 unintentional parricide was not considered to attract leniency. Parricide was considered so grave an act that considering it to be any less an act than intentional was unacceptable.

1 Marc Hillbrand et.al., Parricides: Characteristics of Offenders and Victims, legal Factors, and Treatment Issues. Aggression and Violent Behavior, Vol. 4, No. 2, pp. 179–190, Elsevier Science Ltd.

2 Above n (5). 3 Phillip C. Shon and Jihee Lee (2016) Double Parricides in South Korea: Family Structure, Offender Behaviour, and Sequences of Attack. Journal of Family History 2016, Vol. 41(3) 336-351.

4 Lucy Gabbiani (2013) Insanity and Parricide in late Imperial China (eighteenth-twentieth centuries), International Journal of Asian Studies, 10, 2 (2013), pp.115–141 © Cambridge University Press, 2013 doi:10.1017/S147959141300003x.

LWA219 Criminology - Assignment 2 – Research Paper - Due Date 28 th May 2017

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‘…so profound was the moral stain that it was unimaginable not to take the culprit’s life in retribution, whatever the circumstances.’5

Up until 1908 the stronghold of Quig maintained its stance on parricidal offenders. There was no separation in the eyes of imperial regime. After much intense deliberation among parties, in 1911 a revolution was born where those whom were classified as mentally incompetent were recognised and were given reprieve from legal responsibility for their actions.6

Parricide involves the murder of a parent, parents and or other close family members with the offender being a son or daughter. Cussen and Bryant (2015) discussed a report that had been published which focused on domestic/family homicide and the relationship between victims and offenders.7 Parricide can involve more than one offender such as in the 2001 case where Sef Gonzales murdered his parents, and sister 8. In other cases there can be more than one offender for example it may be the father and uncle being the victims and brother and sibling as offenders, such as the American case in 1989 of brothers Lyle and Erik Menendez, murdering both parents.

9

The

national homicide-monitoring program (NHMP), revealed out of a total domestic/family homicides involved 1,088 cases where parricide was responsible for 128 incidents with 134 victims and 132 offenders.10 Globally statistics reveal parricide equates to 2% of all homicides in America, 1-2% in 5 Ibid pp. 132. 6 Above n (12) pp. 139 7 Tracy Cussen & Williow Bryant, (2015) Domestic/Family Homicide in Australia. Australian Government, Australian Institute of Criminology Research in Practice No 38 May 2015. 8 R v Gonzales [2004] NSWSC 822. 9 Terri Osborne, (2017) Crime history: Erik and Lyle Menendez murder their parents in Beverly Hills. .

10 Above n1.

LWA219 Criminology - Assignment 2 – Research Paper - Due Date 28 th May 2017

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the UK, 2.8% in France and a much higher percentage of 5.3 in Korea.11 Byoung-Hoon estimates that 46-60% of all parricidal murderers have been diagnosed with psychosis with in excess of 50% being diagnosed with schizophrenia.12

In Australia, Mouzos (2003) claims that there are

approximately 12 parricidal murders that are committed on average per year where 94% occur in a residential setting at night. Mouzos added that in Canada research concluded that the majority of parricidal offenders and their victims were of male gender.13 Heide (1992) recognizes three types of individuals that commit parricide those being: “Severely abused children who are pushed beyond their limits; severely mentally ill children; and dangerously antisocial children.” 14

Mones (1991) claims that severely abused children form the most common type of parricidal offenders. Mones further reports the percentage of previously abused children who commit parricide comprises 90% of offenders.15 This abuse can have resulted from physical, psychological or sexual abuse. Murray (1999) discusses four main types of parricide: •

‘Impulsive - such as when the child kills for monetary gain, but does so in a badly thought

out manner; •

Reactionary - where the child kills as the direct reaction to an event such as an argument or

sexual assault;

11Byoung Hoon Ahn (2012) Clinical features of parricide in patients with schizophrenia. Australian & New Zealand Journal of Psychiatry 46(7) 621–629 DOI: 10.1177/0004867412442499, The Royal Australian and New Zealand College of Psychiatrists 2012, pp. 46(7).

12 Ibid. 13 Jennifer Mouzos, & Catherine Rushforth, (2003). Family Homicide in Australia. Trends & Issues in Crime and Criminal Justice, (255), 1-6.

14 Kathleen. M. Heide 1992 Why Kids Kill Parents: Child Abuse and Adolescent Homicide, Ohio State University Press, Columbus, Ohio. 15 Paul Mones, 1991, When a Child Kills: Abused Children Who Kill Their Parents, Pocket Books, New York

LWA219 Criminology - Assignment 2 – Research Paper - Due Date 28 th May 2017 •

Retaliatory - where the child kills as the result of long-term abuse by the parent; and

•

Calculated - where the child plans the murder of their parent.16

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There are two particular facets relating to parricide. One being patricide the killing of ones father and matricide being the killing of ones mother. According to Holcomb (2000) out of the 2.2% of parricides, patricides comprised of 1.5% with matricides making up .07% revealing that matricide killing was less significant than patricidal killing. Matricide is when a son or daughter kills their mother. A son who kills a parent has been linked to what is known as the “Orestes Complex” the unconscious desire to kill one’s mother and “Oedipal Complex’ gaining possession of the mother once the father is dead. 17 The oxford dictionary claims these complexes came from Greek mythology. West and Feldsher (2010) say that Orestes complex is an uncertain response to ones mother that ultimately leads to her imminent death.18 Research has revealed that 72% of sons murdering mothers were found to have had some form of mental illness with schizophrenia being considered the leading type; with depression and personality disorders being other significant causes. Psychosis was found present prior to the murder with most offenders suffering delusions or auditory hallucination. Schizophrenia was considered to be a common denominator in patricidal offenders and according to studies carried out of patricide male offenders only 5% were deemed to be competent to face trial while the others were found incompetent and resulted in hospitalization. 19 Due to insufficient female offenders there has been little research conducted, 16 D.C, Murray, 1999, "Parricide in Canada", Criminal Law Quarterly, vol. 43, pp. 110-44 17 Andrew M Coleman (2014) Oxford Dictionary Psychology (3rd Ed.) Oxford University Press. Print ISBN-13: 9780199543067; eISBN 9780191726828.

18 Sara G West, MD and Mendel Feldsher, MD (2010) Parricide: Characteristics of Sons and Daughters who kill their parents. Current Pschology 2010 November; 9 (11): 20-38 19 Ibid

LWA219 Criminology - Assignment 2 – Research Paper - Due Date 28 th May 2017

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however, in one study conducted by d’Orban and O’Connor in (1989) it was established that women who committed parricide 80% had murdered their mothers with 75% having been found having a psychotic episode. The most determined motive was due to the mother being dominant and where the daughters appeared to be socially deprived. Each murder was extremely violent. On the other hand, the majority of women who had killed their fathers were not found to have psychotic episodes rather kill out of the need to defend themselves against tyranny and prolonged violence.

d’Orban and

‘Connor also found that the average age for women who killed their fathers were 21 years old while those who killed their mothers were on average 35 years of age.20 Overall it has been shown that although parricide is not limited to male offenders research reveal that such offences are predominately committed by males.21

Jenny Mouzos (1999) on a study of mental disorder and homicide in Australia believes that the percentage of homicides relating to mental disorder is relatively low at 4.4% and that the offender is more likely to victimize a family member then a stranger.22

Mental illness is directly linked to parricide in

particular reference to schizophrenia.23 Rhonda Mae Amorado et.al (2008), in reviewing

research

conducted

found

that

parricide

offenders

are

predominately adult in their thirties and generally target the mother. Research also revealed that adult parricides are more likely to suffer from 20 P T d’Orban and A O’Connor (1998) Women who kill their parents, BRJ Psychiatry 1998 154: 27-33 21 H Baxter, Duggan, C., Larkin, E., Cordess, C., &Page, K. (2001). Mentally disordered parricide and stranger killers admitted to high-security care. 1: A descriptive comparison. The Journal of Forensic Psychiatry 12 (2), 287-299. Doi: 10.1080/09585180122057.

22 Jenny Mouzos (1999) Mental disorder and homicide in Australia, Trends and Issues in Crime and Criminal Justice No.133 Canberra: Australian Institute of Criminology, November 1999 ISBN 0642 24124 4 ISSN 0817-8542 23 Above N (5) pp.46

LWA219 Criminology - Assignment 2 – Research Paper - Due Date 28 th May 2017

schizophrenia.

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Shon & Lee (2016) findings implied that paranoid

schizophrenia is the most common form of mental health issues in parricides and is evident in that the offender is generally found to be in a state of nonreality; unaware of the reality of the world around them. 24 They also found that juveniles generally respond more to domestic violence such as physical or sexual abuse.25

Heide in Mikaela Magdeline Starek (2003) claimed that

juvenile parricide offender’s predominately lived in an abusive environment where escape was not an option. Heide further claimed that as the tension grew so did the feeling of helplessness and an escalation of violent episodes by the offender, (prior to the parricidal murder), creating disassociation from any reality and eventually murder.

Finally, a feeling of release and relief

rather than remorse or conviction is the result of such trauma. 26

Adam

Graycar defines it quite simply:

Criminal homicide is probably the most personalised crime in our society...[it involves] a dynamic relationship between two or more persons caught up in a life drama where they operate in a direct, interactional relationship. More so than in any other violation of conduct norms, the relationship the victim bears to the offender plays a role in explaining the reasons for such flagrant violation.27

It has been found that the adult group was shown to have mental health conditions (65%) specifically schizophrenia and paranoia.

It was further

established that 20% of the adult group had auditory hallucinations or being

24 Rhonda Mae Amorado et.al (2008) Parricide: An Analysis of Offender Characteristics and Crime Scene Behaviours of Adult and Juvenile Offenders, cited: . 25 Ibid. 26 Heide in Mikaela Magdeline Starek (2003) Why some children murder their parents: An analysis of adolescent parricide offenders. The University of Texas at Arlington, ProQuest Dissertations Publishing, 2003. 1416862. . 27 Above N (22).

LWA219 Criminology - Assignment 2 – Research Paper - Due Date 28 th May 2017

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‘possessed’ at the time of the crime. 28 Drug and alcohol were factors particularly in adult offenders but seemingly not significantly related to the crime itself.29

Brennan (2000)30 posits that alcohol can have a significant

bearing on parricide if combined with schizophrenia, however, Nordstrum (2006)31 assert that parricidal offenders were seldom found to be intoxicated of the time of the offence.

In order to show the impact of mental health in relation to parricide four Australian cases will be presented. Two cases in particular reveal how the courts take into consideration mental incompetence as a defence as supported by the Criminal Law Consolidation Act 1935 (SA) (CLCA). Two further cases will show how that mental illness cannot be misconstrued as total defence.

The CLCA does provide for people whom knowingly and

willfully carry out criminal or civil offences that are deemed in contravention to the Australian legal system; in particular in serious criminal cases that involve serious harm or death.

Case one: Cy Jacob Walsh (R v Walsh 2016 SASC 157) Supreme Court of South Australia Ruling of the Honourable Justice Bampton

28 Above N (23). 29 Above N (23). 30 PA Brennan, Mednick SA and Hodgins S (2000) Major mental disorders and criminal violence in a Danish birth cohort. Archives of General Psychiatry 7: 494–500.

31 A Nordström, Dahlgren L and Kullgren G (2006) Victim relations and factors triggering homicides committed by offenders with schizophrenia. Journal of Forensic Psychiatry and Psychology 17: 192– 203.

LWA219 Criminology - Assignment 2 – Research Paper - Due Date 28 th May 2017

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28th September 2016 Cy Walsh had been charged with the murder of his father Phillip John Walsh on the 3rd July 2015. Mr. Walsh had pleaded not guilty under the defence of mental incompetence. Under South Australian law a defendant must first be presumed mentally competent to commit an offence subject to Part 8A of the CLCA in order to be found mentally incompetent. Dixon J supports this in his summing in the 1935 case between R v Porter where he asserts that:

‘To begin with, every person is presumed to be of sufficient soundness of mind to be criminally responsible for his actions until the contrary is made to appear upon his trial. It is for the defence to establish inferentially that he was not of sufficient soundness of mind at the time he did the actions that was charged, to be criminally responsible.’32

In pursuant of Part 8A s269B (i), Mr. Walsh chose to have his review in regard to being found not guilty for murder due to mental impairment, be dealt with by a judge alone: 269B —Distribution of judicial functions between judge and jury (1) An investigation under this Part by the Supreme Court or the District Court into— (a) A defendant's mental competence to commit an offence or a defendant's mental fitness to stand trial; or (b) whether elements of the offence have been established, is to be conducted before a jury unless the defendant has elected to have the matter dealt with by a judge sitting alone.33

In view of supporting evidence provided by Forensics Psychiatrist’s Dr Furst, 32 R v Porter 1933] HCA 1 (01 February 1933); 55 CLR 182 33 Criminal Law Consolidation Act 1935 (SA) Part 8A s269B (i).

LWA219 Criminology - Assignment 2 – Research Paper - Due Date 28 th May 2017

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Dr Brereton, and Dr Nambiar’s Justice Bampton conceded that Mr Walsh had suffered mental impairment – such so unable to reason with any awareness of the degree of sagaciousness or self-control regarding the heinous nature of his actions towards his father. Toxicology reports supported claims that neither alcohol nor drugs were present in his system at the time of the offence; rather he was found to have suffered a psychotic episode as a result of schizophrenia that had been at the time neither undiagnosed nor treated. Having reached a conclusion that Mr Walsh was deemed to be mentally incompetent at the time of the offence elements of s 269FB CLCA were established with supportive evidence being put towards the court regarding events leading up to the imminent death of Mr Phillip Walsh. Murder had been established beyond reasonable doubt further establishing the objective elements. The court was satisfied that the elements had been established – recording their findings as per s 269FB (3) CLCA, therefore finding Mr Walsh not guilty due to mental incompetence, to be liable for supervision, not guilty of murder and discharged according to this section.

In order to comply

Justice Bampton placed Mr Walsh under detention as per s269O (i)(B)(i) of CLCA under a lifetime psychiatric supervision order of with time to be reviewed by the courts. Cam Tyeson ABC News (2016) provides further information reve...