[PEN-L:9634] RE: Re: tiresome debates

["Charles Brown" <CharlesB@xxxxxxxxxxxxxxxxxxxxx>]

I agree with Judge Craven here. In construing the U.S. tort law concept of recklessness, I think it was Supreme Court Justice Louis Powell who said that a person is presumed to intend the necessary and foreseeable consequences of their actions. This is substantially equivalent to Judge Craven's phrase " "an act whose inexorable or highly probable consequences are foreseeable ". This is an objective standard. That is, the mens rea or mental element of the crime or tort is inferred from actions and direct evidence of "doing it on purpose" or intentional action is not required.

To be a little more concrete, if someone drive a car at high speed into a crowd of people and someone is killed, the driver can be convicted of 2nd degree murder  rather than manslaughter based on recklessness, even though the driver did not have the specific intent to kill the person that died. Manslaughter is an unintentional or negligent killing. 2nd degree murder is an intentional killing. But Powell's reasoning above  provides the possibility that the act of driving into the crowd is presumed to be an intentional killing because it is a necessary and foreseeable consequence of such reckless action.

Thus, there may not be smoking gun evidence of intent to kill or cause premature deaths in setting up Indian reservations or slave plantations , but the deaths and torture are foreseeable and necessary consequences of creating such conditions and the mens rea for the UN Convention Crime of Genocide are met.



Charles Brown


..
>>> "Craven, Jim" <jcraven@xxxxxxxxx> 07/26/99 01:57PM >Further, intent or mens rea is not defined in law only from self-expressed
statements of intent. If one commits an act whose inexorable or higly
probable consequences are foreseeable by the "mythical reasonal and prudent
person", intent to commit those acts and produce those consequences can be
and will be inferred from the inexorable or highly probable consequences
of those acts. The brutality, violence and exploitation associated with
slavery inexorably produce the destruction of the slaves as invidividuals
and as members of whole groups; that is one of the fundamental
contradictions of slavery--past and present--the brutal productive relations
and practices of slavery designed to extract maximum surplus value from the
slave, the main force of production, destroys the slave himself/herself
individually and slaves in mass numbers collectively as a group.

Jim Craven

-----Original Message-----
From: Charles Brown [mailto:CharlesB@xxxxxxxxxxxxxxxxxxxxx]
Sent: Friday, July 23, 1999 10:21 AM
To: pen-l@xxxxxxxxxxxxxxxxxxx
>Subject: [PEN-L:9577] Re: tiresome debates


By the way, the international law definition of genocide was not formulated
by only Soviet Communists, but U.S. and other Western liberals, So, use of
the UN definition is not somekind of inappropriate. Communist rhetoric in
arguments with liberal/social democrats. The Nurembourg statutes and
definitions were not formulated by only radicals. They are the products of
the anti-fascist war coalition which included liberals, social democrats, et
al.

Charles Brown

>>> "Charles Brown" <CharlesB@xxxxxxxxxxxxxxxxxxxxx> 07/23/99 12:40PM >>>
The UN Convention  for the Prevention and Punishment of the Crime of
Genocide, which Jim Craven has posted several times on the list specifically
defines the mental element (mens rea) of the crime of genocide as intent to
kill or do an number of other things to a goup as a whole OR IN PART. This
intent to kill the WHOLE group is not a requirement. Furthermore, it does
not only include the act of killing members of a group as members of a
group, but torturing , maiming, removing children, et al. So acts other than
murder constitute genocide in the international law definition.

Charles Brown

>>> Brad De Long <delong@xxxxxxxxxxxxxxxxx> 07/22/99 07:58PM >>>
>
>One more question -- If slavery was not a Holocaust because the
>intention was not immediate death

I said that slavery did not seem to me to be "genocide"--because the
aim was not to destroy West Africans as a people, but rather to be
(and remain) in the business of bribing some of them to deliver
others bound and shackled to the slave ships at the coast. "Genocide"
seems to me to require that extermination be the end in view: the
Abenaki people do not live in Westbrook, ME any more.

I also said that we need another word for what happened to West
Africa and West Africans between 1600 and 1820 that carries an
equally powerful emotional load, but I don't know what that word is...


Brad DeLong