There were a number of strong contenders for WTF-iest moment this week, including Clint Eastwood’s vaudeville-worthy “Invisible Obama” comic stylings, and the anti-birth control legislator from the Philippines who responded to allegations that he had plagiarized the work of blogger Sarah Pope with: “Why would I quote from a blogger? She’s just a blogger.”
But the obvious winner was the South African National Prosecuting Authority’s decision to charge 270 striking miners in the deaths of 34 of their coworkers who were killed by police during the suppression of a violent protest earlier this month. Yup, you read that right; they could be convicted for murder despite it being clear that the fatal shots were fired by police officers.
The press coverage has characterized this perverse outcome as the result of manifestly unjust apartheid-era laws, but it’s actually not that disimilar to something that occurs often in U.S. and other common law jurisdictions. Most U.S. states have a felony-murder rule on the books, which means that if you are engaged in the commission of a felony, you can be charged with murder for deaths that occur during the course of the crime, even if you didn’t intend or personally cause them.
In some states this applies only to deaths caused by your co-perpetrators, but in others, it includes any deaths that occur as a result of the felonious conduct. So, for instance, this Chicago man was charged in June with first-degree murder when police killed his accomplice during an armed robbery. And these two guys in Florida face murder charges for the death of their co-conspirator in an ill-fated attempt to rob undercover officers.
Most criminal law scholars think this is total crazy sauce. It imposes liability for unintended results, which is not how the criminal law usually rolls (mens rea, and all that), and can mandate criminal penalties where no crime has actually been committed (i.e. where the police officer’s action was lawful).
So South Africa definitely gets points (demerits?) for applying their version of the felony-murder rule in such a spectacularly high-profile and unjust manner, but this type of WTF-ery could be happening regularly in a courtroom near you.