Criminal Liability in Le Jefa

The Spanish movie “La Jefa” (“Under Her Control”), a film set in Madrid, is currently on Netflix worldwide. SPOILER ALERT: READ NO FARTHER IF THERE IS ANY LIKLIHOOD YOU WILL SEE THIS MOVIE!!!

It’ is OK, however, to read this post even if you have not, and never will, watch the movie, which is of modest merit. And Dark.  Perhaps the real purpose of the writers, producers, and directors was to supply material for law school exams.

The Stabbing: Narrow Focus

Beatriz pinned down and attempted to strangle late pregnancy Sofia. Sofia seemed near blacking out. Did Sofia murder Beatriz when she then got a hand on scissors with which she stabbed her? I am going to approach this question by stages, starting with the stabbing and a few moments prior. I will enlarge the temporal dimension to take in more and then more still of the preceding events. For the moment, I abstract also from one important fact contemporaneous with the stabbing.

Beatriz had jumped Sofia, whose attempt to run away was unsuccessful. Her strangling of Sofia was on the verge of success. Sofia’s grabbing the scissors seemed a literal last gasp attempt to stay among the living. So far, then, this is textbook self-defense.

Abandonment

Now comes what I left out. This is a fact of which the prosecution would almost certainly never learn. Beatriz actually had stopped choking Sofia about six seconds before the stabbing. When I first saw this, I was puzzled as to why Beatriz had released her grip on Sofia’s neck. I drew no particular conclusion, however, being caught up in the quick moving action.

Watching Beatriz’s face as I replayed the scene a couple of times, it seemed possible that Beatriz was having second thoughts about killing Sofia. Perhaps she was thinking, “No, I can’t kill the woman who is carrying the baby she contracted to give me at birth.”  Right upstairs the baby’s room was ready, lovingly furnished.

Omniscience might have it that Beatriz was no longer a threat to kill Sofia and that the latter had lost any metaphysical justification for using deadly force. Had Beatriz jumped off and stepped away from Sofia, that would have unambiguously signaled an end to Beatriz’s dangerous assault. The brief withdrawal of her hands from Sofia’s neck while still pinning her to the floor, however, was hardly enough for a reasonable victim to conclude that what had been deadly peril was at an end. There is a little room for argument here, but I submit that Sofia’s use of the scissors, on the evidence she had, was justified (or at least excused – for those theorists who think justification requires the stamp of omniscient approval.) Sofia, then, would be in the clear – if we knew none of the history preceding Beatriz’s ambush of Sofia.

(Detour: if Beatriz truly had abandoned her attempt to kill Sofia would Beatriz’s potential attempted murder liability have vanished at that instant into nothingness? There is some conflict on this question among criminal law theorists. A few contend, plausibly enough, that a crime once committed cannot be un-committed. When the choking had reached the point where it was seriously affecting Sofia, the crime of attempt would be complete in all jurisdictions. (If the police had rushed in and pried her hands off Sofia’s neck, she could have been properly charged with attempted murder worldwide. However, despite its questionable logic, all, or almost all, jurisdictions have it that an attempt, even an attempt gone so far as to count as a completed crime, if voluntarily abandoned, is no attempt. A consideration in favor of the rule that abandonment dissolves the attempt is that it encourages late abandonment, and abandonment is always a good thing.

Had police burst in the instant before Sofia grabbed the scissors, there is a real question whether the prosecution would seek to charge Beatriz with attempted murder. She was no longer strangling Sofia, and she could claim that she had decided to do Sofia no physical harm. Yet she had not gotten her weight off Sofia’s prone body, and there was nothing that showed unambiguously that her attack was a thing of the past. Were this all there was to it, without the prior facts that we have not yet set forth, many prosecutors would charge only the assault, not the attempted murder.

However, these are two different things: (1) what would have given Beatriz a defense to the attempt charge and (2) what would negative Sofia’s defense of self-defense. (2) would depend upon Sofia’s reasonable beliefs. On that score, again, she had insufficient evidence of Beatriz’s abandonment of her attack, if abandonment it was, to conclude that she was out of mortal danger.

Widening the Focus: Sofia’s Prior Attack

We must now, in any event, take a step back in time. Beatriz’s ambush of Sofia was not how the violent confrontation had started. In the midst of a perfectly civil conversation, Sofia came from behind and smashed a wooden rolling pin into Beatriz’s head. Twice! Sofia then tied the unconscious Beatriz to a column. It is from this inconvenience that Beatriz had freed herself before attacking Sofia.

Taking, again temporarily and to keep things simple, this to have been the first of the relevant facts, Sofia would clearly have been guilty for the rolling pin assault and also for a crime in the false imprisonment family for tying up Beatrice.

This raises the question whether Beatriz might have been justified in her attempt to strangle Sofia. (Beatriz, of course, had no real need of a criminal defense as the dead cannot be prosecuted.) Yes, Sofia had proven herself very dangerous indeed with her rolling pin attack. It was certainly reasonable for Beatriz to take steps to preserve herself. Deadly force would be appropriate were that her only alternative.

In contrast to Sofia, when pinned to the floor and already nearly choked into unconsciousness, however, Beatriz had non-violent alternatives. It was her own villa. She knew the layout and which of the heavy doors could be quickly locked. She knew the grounds, and she could surely outrun the late pregnancy Sofia for as long as need be. Beatriz’s attack on Sofia was not legitimate self-defense but revenge.

 Provocation Doctrine

It is a general principle of criminal law that one may lose the benefits of a defense if one manipulated the circumstances that made the defense seem appropriate. An example is easier than this statement of the principle. Suppose A throws a bottle at B’s head, B rushes A with fists clenched, A punches B breaking his nose. Absent the bottle throw, A would have a good defense of self-defense for the punch-assault. Because of the bottle, A would not. The principle is especially apt if the whole reason for throwing the bottle was to provoke the affray.

If Sofia’s rolling pin attack were the first legally salient act (remember we are enlarging our temporal focus step by step), would she be barred from claiming that her fear of death by strangulation justified or excused her recourse to the scissors?  I think not because, again, Beatriz could and should have withdrawn fully and effectively instead of attacking Sofia.

This is not quite so automatically decisive a consideration as it is in the preceding section, because the provocation doctrine expressly embraces such cases. Beatriz was certainly provoked, big time. However, it was not Sofia’s intention to provoke her. She was not manipulating Beatriz into attacking her. Far from it. So, this would not be paradigmatic provocation case. The provocation was certainly severe, but the time gap was substantial. This is like a case in which the bottle was thrown a good while before. Beatriz made no attempt to escape danger, which she could have done easily. She had time to consider, and she chose to attack. She should not get the benefit of the provocation doctrine

Yet Wider Focus: Deadly Force and Robbery in the Home

While Beatriz was trying to untie herself, Sofia was not baking cookies for the neighborhood urchins. Having forced the combination out of Beatriz, she was upstairs gathering several large bundles of Euros out of a safe.

Does this, added to the previous facts, give Beatriz a justification for trying to choke Sofia to death? In many U.S. jurisdictions, it conceivably might. The “a man’s home is his castle” doctrine as expanded by gun lobby supported legislation, gives the homeowner very broad license to use deadly force against miscreants in the home. Your friend is sneaking a birthday present for you through the kitchen window. You fire at the shadowy form at the dark window.  Absolute defense: no murder, no manslaughter, no criminally negligent homicide.

What, were we in the U.S., would need to be checked in the state law was whether the statute applied only to unlawful intruders as it sometimes does.

In any event, Spain’s law is different. You do not have an unconditional right to shoot (or strangle) a thief even if still in your house and even if the thief had used force or the threat of force to effectuate the theft. If the thief is on the way out, as Sofia was, justified force against the thief would not usually rise to the deadly level. In the particular and peculiar facts of this case, even in flight, Sofia might possibly be judged a “residual danger” so long as in the villa. That could lower the degree of the homicide charge against Beatriz had she succeeded.

It seems unlikely, however, that a Spanish Court would find that a fleeing felon Sofia had lost her right to defend herself from strangulation on these grounds.  

The Whole Picture: That Sofia Had Been Held Against Her Will:

Let’s now enlarge yet again our temporal focus. It was Sofia who had for weeks been held prisoner, incommunicado, in Biatriz’s villa with its high walls topped with inward angled barbed wire and locked solid iron gate. From this perspective it is Sofia who can lay claim to the law’s tenderness towards the use of even deadly force by those escaping unlawful imprisonment.

The imprisonment being unlawful, at least proportionate force to eventuate an escape would be justified were there no plausible non-violent alternatives, and non-violent alternatives were here, at best, far from certain to succeed. Sofia, in her condition, could not escape over the wall. She tried and fell.

Beatriz might relent, but from her behavior, that seemed highly unlikely.  Omniscience would know that there would be no rescue by Sofia’s boyfriend Nacho, whom Beatriz had run down with her sports car. Sofia could not be so sure, knowing nothing of Nacho’s demise, but it was significant that he hadn’t shown up yet.

(The prosecution would know that a Nacho-rescue was impossible and who had brought about its impossibility. That might well affect their decision whether to charge Sofia with a homicide, even if it would not factor into the logic of the law of self-defense and escape from wrongful imprisonment.)

There do not seem to be any Spanish cases (and are few, if any cases anywhere) in which a kidnapped person has been convicted of homicide for using deadly force in escaping. The kidnapped person, or person restrained as Beatriz was, is the victim of a continuing aggression, and courts tend to be generous in finding what here would be called “necessidad racional” on route to concluding that deadly force in escape was justifiable. 

All in all, I think the better view is that Sofia’s use of the rolling pin to subdue Beatriz and so make escape possible was justified. It is doubtful that she could have gotten her hands on the gate controller through any less violent course of conduct. Beatriz was nothing if not determined to possess that baby, and the continued imprisonment of Sofia was, at this point in time, pretty clearly her only means to that end.

This strongly reinforces our prior, and slightly tentative, narrowed fact set conclusion that Sofia was justified, or at least excused, in using the scissors against Beatriz.  Sofia should not be convicted of any level of homicide. She would be convicted of the robbery of the Euros barring a surprising exercise of prosecutorial discretion.

Focusing Back Down and Separating Descriptions

Sofia’s forcible robbery of Beatriz was part of the whole complex of violence between the two, in which, as just argued, the imprisonment of Sofia was the root fact. It might still be contended that the robbery of the fat packages of Euros was a sufficiently distinct transaction to remove it altogether from the protection of Sofia’s defense of escape from a criminal imprisonment. certainly she could be tried for the robbery. Now, however, I want to ask whether that infection should be seeing as spreading to affect all her subsequent actions – including the stabbing.

Sofia probably could not have escaped without at least tying Beatriz up. She needed time and opportunity to find the radio control for the gate. Indeed, for reasons already canvased, even with the gate open she had no hope of outrunning Beatriz, should Beatriz recover from the rolling pin. Still, extorting Beatriz with deadly threat to get into the safe and the theft of the Euros was a “frolic and detour” in a phrase from the common law tradition. It was not only unnecessary for her escape, it was positively ill-advised as it gave Beatriz more time to free herself.

So, under one description, and taking into account most of the circumstances, Sofia, defending herself from an immediate deadly threat and making good her escape from unlawful imprisonment and her use of deadly force seems justified. Yet, there is another description of the stabbing under which she killed Beatriz to escape with the proceeds of her robbery.

Both descriptions are true. Which should control?

Although subject to a good deal of warranted criticism, many common law jurisdictions have the “felony murder rule” pursuant to which the felon is criminally liable for any death that occurs in the commission of a felony or in the immediate flight therefrom. The most dramatic cases are where, e.g. the bank guard, firing at the fleeing robbers kills, in addition to one of the robbers, an innocent bank customer. The robbers (even the getaway driver out in the car), by the rule, are all liable for two counts of murder: of the customer and their own confederate. Spain does not have the felony murder rule as such. (In the bank case, the robbers would not be guilty of murder (asesinato) but because bank robbery is objectively highly dangerous, they might well be guilty of a lesser homicide for both deaths.

Even without the felony murder rule itself, the rationale behind the rule still has some force. It seems not altogether unfitting to make the perpetrator of a dangerous felony criminally liable for a death incident to the crime committed. In many U.S. jurisdictions, this rationale would reinforce the castle doctrine in toting up Sofia’s criminal liability.

With neither the felony murder rule nor the castle doctrine, Spain would not give quite as much weight to the fact that Sofia was an escaping robber as well as escaping victim of unlawful imprisonment. Beatriz was not justified in lying in wait with intent to use deadly force against her long-time captive, even though that captive was also escaping with the loot. So, Sofia was justified, or at least excused, in using deadly self-defense. Perhaps this conclusion will be of a little comfort to some who have watched the movie, not much though. The story had no heroes. (Well, perhaps Nacho was something of a hero, but he was peripheral, and his loyalty to Sofia was more pathetic than heroic.)

It may well be that the prosecution of Sofia would never even be considered because she didn’t survive her walk down the lonely road from the villa after her water broke. I think, however, that she would shortly be picked up by the police as Beatriz’s office manager was well aware that there was an emergency situation at the villa. If I am wrong about Sofia’s survival, the prosecutors, after investigating, might well be relieved.

For more on the criminal law doctrines of provocation and abandonment of see my discussion of the Dolores Claiborne movie https://lawrencecrocker.blogspot.com/2014/12/v-behaviorurldefaultvmlo.html.