Oscar Pistorius: The four legal rules that determine his legal responsibilities

Wednesday, October 15, 2014

Good evening:

I do not agree with Judge Masipa’s reasoning and I write to clear up confusion.

There are four legal rules involved in determining Oscar Pistorius’s legal responsibility for Reeva Steenkamp’s death.

1) Dolus eventualis;
2) Transferred intent;
3) Presumption of innocence; and
4) Self-Defense.

Dolus eventualis basically means that a person intends the natural and probable consequences of their acts because they are reasonably foreseeable.

Death was a natural and probable consequence to anyone, regardless of their identity, who was behind the wooden door in a confined area with nowhere to hide like the toilet cubicle in Oscar Pistorius’s house, when he fired 4 shots at point blank range with a 9 mm semiautomatic loaded with Black Talon ammunition through the door. For that reason, that consequence should have been reasonably foreseeable to Pistorius when he fired the shots.

Transferred intent means that, even if Pistorius did not intend to kill Reeva and he believed an intruder was behind the door when he fired the shots, his intent to kill the intruder transfers by operation of law to intent to kill her.

The presumption of innocence means that a person cannot be convicted solely on the basis of a presumption that he intended to kill the person behind the door. There must be actual evidence that he intended to kill.

Here, there is circumstantial evidence that he intended to kill based on the type of ammunition used, the number of shots, their spacing and trajectory, and finally the distance from which the shots were fired.

Finally, self-defense can be ruled out because the person behind the door did not threaten to kill Pistorius and did not attempt to open the door and attack him. Therefore, he was not in imminent danger of death or serious injury when he fired the shots. His use of deadly force was not reasonably necessary.

Therefore, whether he actually intended to kill Reeva is not relevant to the issue of guilt, although it may be a relevant consideration at sentencing.

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7 Responses to Oscar Pistorius: The four legal rules that determine his legal responsibilities

  1. SearchingMind says:

    “Finally, self-defense can be ruled out because the person behind the door did not threaten to kill Pistorius and did not attempt to open the door and attack him. Therefore, he was not in imminent danger of death or serious injury when he fired the shots. His use of deadly force was not reasonably necessary.”

    Professor, while reasonable people may disagree on this issue, most reasonable people will disagree with you on this point. The “person behind the door” who broke into a private home at 3 a.m., in South Africa or New York, poses by virtue of that act alone an imminent danger to the occupants of said home. Said person neither has to utter verbal threats nor point a gun to the face of the occupants nor do said occupants have to wait for him to open the door of the toilet and start attacking them for said danger to exist within the meaning of the law.

    Again, if you believe Pistorius’ claims, then you must accept that Judge Masipa got it RIGHT! If you don’t believe Pistorius (as neither I nor you do) the Judge Masipa got it wrong. There was no intruder at 3a.m in Pistorius’ home and hence no threat. There are several facts in evidence to demonstrate that.

    Once you accept the presence of a burglar/intruder in the home of a rich but disabled person, at 3 a.m. in the night, in violent SA (where thousands has met violent deaths in similar circumstances), etc. then you have lost the argument re “imminent danger” and self defense. Folks who have been threatened in their own homes before (at midnight) and either made it alive or ended up dead will be surprised at your stance, Professor.

  2. SearchingMind says:

    “Transferred intent means that, even if Pistorius did not intend to kill Reeva and he believed an intruder was behind the door when he fired the shots, his intent to kill the intruder transfers by operation of law to intent to kill her. (…).”

    I disagree, Professor, because this claim neither makes sense nor has legal merit. If Pistorius truly believed that an intruder was behind the door when he fired the shots, his intent to kill the intruder does NOT transfer to intent to kill Reeva if Pistorius by law was entitled to kill the intruder. If Pistorius (a) TRULY believed that an intruder was behind the door and (b) has a right under the law to defend himself against the intruder incl. shooting said intruder, then Pistorius is – at best – guilty of negligence if (c) he ends up killing a non-intruder behind said door even though the average person could have foreseen that the person behind the door was a non-intruder. IF you believe Pistorius’s story, then the ONLY conclusion that must follow is that the death of the victim was NOT intentional, but rather negligent. If Pistorius had killed a burglar who broke into his home at 3a.m in the night, instead of Reeva, he would have been withing his right to do so. This fact alonef blocks the transfer of Pistorius’ intent from the the intended burglar to an unintended victim, because the legal doctrine of“error in person vel objecto”.is limited to cases where the killing of the intended victim is illegal! (talking about “operation of the law”) .

    If you don’t believe Pistorius’ story (as neither I nor you do), then the issue of “dolus eventualis”, “transferred intent”, etc. dose not even arise, because you are not dealing with any form of ‘error’ (withing the error doctrine) here, but rather with the classical case of “dolus directus” (Oscar wanted Reeva dead and chased her to his little “toilet cage” and shot her dead there and is ling about it).

    Furthermore, it is very unclear what you mean by “by operation of the law”. You may need to explain that. Perhaps if you had based the current article on the correct legal frame work / doctrines (the error doctrine/ Irrtumslehre), the usage of “by operation of the law” would not have appeared particularly mysterious.

  3. Malisha says:

    Cough, cough, cough. Ahem. May I presume that if you shoot a few deadly bullets mere feet away from where a live human being is presumed to be standing/sitting, IN THEIR DIRECTION, you intend for one or more of those deadly bullets to hurt or kill said live (briefly) human being?

    • bettykath says:

      oh, Malisha. There you go again, using logic. 🙂

    • SearchingMind says:

      No, you may not – plain and simple.

      • SearchingMind says:

        A and B are sitting next to each other in a theater. On the opposite side of the theater is C who is also a trained sniper. C aims his gun at B with intent to kill her. C pulls the trigger, while A simultaneously leans over to B to kiss her on the lips. A is hit in the head. A is dead. What are you dealing with here: error in persona, error in objecto or abberatio ictus? Discuss C’s intent, if any, within these legal frame works/doctrines, without which discussing “intent”, “dolus eventualis”, “dolus directus”, “dolus indirectus”, “dolus eventualis”, etc, makes no sense whatsoever.

        • Malisha says:

          A and B are sitting next to each other in a theater. A looks real suspicious. On the opposite side of the theater is C who is also a trained sniper. When C was coming into the theater, the woman in front of him was denied entry and arrested for trying to bring in her own chocolate-covered raisins. She faces charges of theft of services and fraud. C proceeded in with his loaded uzi. C aims his gun at B and pulls the trigger while A leans over B to grab a cell phone away from someone sitting on the other side of B and texting to his baby-sitter. A is hit in the head and killed. The texter spills popcorn but it seems to someone in the row behind him that the popcorn was a missile. So he grabs his glock and shoots the texter with the popcorn. By now the theater is in an uproar. Good guys with guns are leaping up everywhere to shoot the bad guys with guns, just like NRA suggested. Someone jumps up and yells, “Don’t FIRE!”

          The question is: How did family law get into the federal courts?

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