Why do people spit 1

Woman dies after being attacked by someone infected with corona: spitting with intent to kill

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Guest contribution by Dr. Cornelia Spörl

15.05.2020

Killing has rarely been easier than it is now. A slightly wet pronunciation, coughing and spitting, all of these can be fatal. Cornelia Spörl explains when there is conditional killing - and infection means murder or manslaughter.

It happened: In London, two railway employees were spat at by a man suffering from Covid-19. Both became infected, one died. There have also been several spitting attacks in this country, especially on older people and police officers. The British vomiting triggers the spontaneous desire for a lot, yes, a lot, social distancing, but also raises legal questions. How would German criminal law deal with such a case?

The British police have ruled out homicide investigations - should that also be done in Germany? And how would the courts deal with such a case? The intent to kill is of particular interest under criminal law.

The question of whether "death by spitting" was caused deliberately can of course never be decided in the abstract, but always with a view to the specific individual case. As an "inner factual side", the intent depends on the knowledge and will of the perpetrator at the time of the offense. Only those who recognize the occurrence of death as a possible consequence of their actions (element of knowledge) and approve of it (element of will) have a conditional intention to kill.

Anyone who does not believe in Corona has no intention to kill

Some spitting attacks do not meet these criteria at first glance: If, for example, a corona denier spits at a police officer at a demo, she neither wants to kill nor does she think it is possible to kill. Because she considers the virus or its dangerousness to be "fake news", she does not even know about the dangerousness of her action and thus fails to recognize the circumstances that are part of the legal offense (Section 16 (1) StGB).

Such constellations are hardly imaginable due to the extensive media education. In special cases, however, criminal liability for an (attempted) homicidal offense can be excluded due to a lack of cognitive intent. It remains the negligent homicide.

In the London case, according to previous media reports, there are no indications of such a special constellation. In the concourse of London Victoria Station, the as yet unknown perpetrator is said to have approached two uniformed ticket sellers. So he shouted "I have Corona!" and spat in the women’s faces. Both developed symptoms a few days later and tested positive for the virus. Belly Mujinga died 14 days after the attack as a result of the lung disease.

Spitting is more dangerous than usual

The British case gives reason to think again very fundamentally about the intent to kill under German criminal law. The so-called inhibition threshold theory of the Federal Court of Justice (BGH) only plays a subordinate role here. In the past, the theory was sometimes ascribed a purpose-critical meaning.

In its more recent rulings, the BGH has repeatedly emphasized that the inhibition threshold theory is exhausted "in a reference to the importance of the principle of free judicial assessment of evidence" according to Section 261 of the Code of Criminal Procedure (StPO). There are therefore no increased requirements for the acceptance of an intent to kill The fact that this test can be difficult is shown not least by the recent, lively discussion about the speeding cases: For example, did the participants in an illegal car race on Berlin's Ku'damm approve of the death of passers-by - and are to be condemned as murderers?

It is clear that the danger to life of the action in the overall view of the objective and subjective circumstances of the crime must be assessed as a weighty indicator of the intent to kill. SARS-CoV-2 is highly infectious, but the statistical probability of dying from Covid-19 is rather low. The virus dose in spit attacks is again very high; in addition, it is often not possible to tell from the outside whether someone belongs to the risk group. If an infected person spits in the face of another, there is a fundamental risk to life.

Parallels to the speeding cases: Between intent and negligence

If the perpetrator acts anyway - i.e. knowing the danger to life - then he will regularly be indifferent to the fate of his victim. Because unlike in the speeding cases, the spitter even intends the social reference; he acts with intent to harm and wants the other to be exposed to the consequences of his actions. If such a threat only hopes for a happy ending, he plays Russian roulette with his victim and accepts his death approvingly. In the dichotomy of deliberate negligence and conditional intent, that is precisely the intent to kill.

But one has to be aware that the "will of the perpetrator" will often enough be fiction. How do you also want to determine the inner attitude of the perpetrator at the time of the crime? Of course, the trial court must try to make its findings on the defendant's mental state as specifically as possible on the basis of various circumstantial evidence - but it cannot do without attributions and weightings.

In this gray area, black and white decides between intent and negligence - with serious consequences for the range of punishment. The corona attacks therefore once again confirm the findings of Tatjana Hörnle and Elisa Hoven with regard to the speeding cases: One should no longer differentiate between deliberate intent and deliberate negligence, but rather a three-way division of negligent, frivolous and deliberate commission. In the course of such a reorganization, the current transition zone, in particular cases of a lack of inner attitude towards the act, should be expressly defined as recklessness (i.e. gross negligence).

The London Case: Murder Features Realized?

Fatal spitting attacks can also be murder. In the case of the British spit, the motive is as unclear as its identity. Because the reprehensibility of the motive can decide on the criminal liability for murder (Section 211 Group 1 and 3 StGB), it would have to be determined why and for what purpose people coughed and spat. The perpetrator could possibly have acted out of joy in the annihilation of a human life (lust for murder) or out of racist motives (otherwise low motives). Another consideration is the killing of an accidental victim in public social space, i.e. a blatant disregard for the personal worth of the victim (again otherwise low motives).

The perpetrator may even have acted insidiously. To do this, he would have to have consciously exploited the innocence and defenselessness of the victims at the time of the attack. It is part of the tragedy of the London case that the victim, as far as known, informed his employer about pre-existing respiratory illnesses before the attack and considered it too risky to work in the crowd of the station concourse, in which attacks on employees are frequent - and that the supervisor insisted on performing the usual activity without a mask (!). Apparently, Belly Mujinga was worried about a Covid-19 infection and therefore had no idea at the time of spitting on that he was safe from an attack. But such latent fear does not stand in the way of innocence.

The question of a possible criminal liability of the overly careless superior (because of negligent homicide due to disregard of the occupational safety regulations?) And the employer (keyword: corporate criminal law) must be clarified elsewhere.

Basically, in the case of a malicious spitting attack, the criminal law assessment of manslaughter seems appropriate. But the bad will is in fact difficult to determine. It would be up to the legislature to replace the problematic dichotomy by intent and negligence with a three-way division of intent, recklessness and negligence. Either way, if you go into quarantine after a corona infection, you not only protect the lives of others - you also protect yourself from being behind bars for a longer period of time.

The author Dr. Cornelia Spörl, LL.M. (Melbourne LTU) is a PostDoc at the Max Planck Institute for Research into Crime, Security and Law in Freiburg. Here she gives her personal opinion.