[HPforGrownups] Moaning Myrtle's murder (Was: Harry a Horcrux?)

[Kathrin P]

No: HPFGUIDX 153900

KJ wrote:
>     While I agree whole-heartedly with your timing, I have a hard
time recognizing the death of Myrtle as a murder. I don't think that
Tom released the basilisk with the specific intention of killing
people, that is just what basilisks do apparently. I don't suppose
that Tom concerned himself about it, but I don't think that it would
cause a split in his soul unless it was malicious and meant. I also
don't think that he would find Myrtle of sufficient importance to use
that murder as the basis for a horcrux. I have seen a few hardy
posters attempt to come up with sufficiently important people to match
to the horcruxes, but I find either too many murders or not enough
significant murders.

Kathrin now:

As a law student I couldn't hold myself back from taking a closer look on
this 'case' ;-) Of course, since I do not have the book with me I had to
work with what my memory provided me with, so tell me when I assume a wrong
'fact'. Also, please remember that I'm German, so everything I say is based
on German law!

I. elements of a crime (here manslaughter - note: not murder, murder
includes a dangerous weapon or one of the other aspects of murder!)

1. objective elements of a crime

a. success
A person must be dead. Myrtle is dead.

b.causation (Actually three theories, but since they all have the same
result in this case I'll just use the most common theory.)
The act has to be cause to the success. An act is cause to a success if it
cannot be thought away without the success being dispensed with. If the
basilisk was not freed Myrtle would not have died, therefore the act is
cause to the success.

c. objective assigning
The success has to be objectively assigned. The basilisk can kill people.
Killing someone is a judiciary condemned  danger, therefore it is
objectively assigned.

2. subjective elements of a crime
Tom must have acted with intent. (We know three forms of intent in Germany.)

We have a dolus eventualis, when the delinquent seriously thinks it is
possible and lumps it, that his acts can make the elements of a crime
happen. The delinquent must have thought about the possibility of a success
and must have been conscious of a possible success. Tom knew what could
happen, thought about it and was conscious about the success.
We have a dolus directus - second degree, when the delinquent certainly
knows or anticipates that his acts can produce a success for the elements of
a crime. It is irrelevant whether the delinquent thought about the success
or was conscious about it. Tom knew that his freeing the basilisk could
result in the death of students at Hogwarts.
We have a dolus directus - first degree, when the delinquent intends to
cause the success of the elements of a crime. He has to have a goal-oriented
will to succeed. It is irrelevant whether he thinks the success is sure or
possible. Tom has the intention to cause other students' deaths (mudbloods)
when he freed the basilisk.
Therefore, Tom acts with intent in form of a dolus directus - first degree
(you can't get 'above' it!).

II. illegality
There are no obvious reasons for Tom's act to be legal, therefore his acts
are illegal.

III. guilt
There are no obvious reasons to diminish Tom's guilt, therefore he is
guilty.

IV. result
Therefore Tom did commit manslaughter with freeing the basilisk who then
killed Mourning Myrtle.

end of case ;-)


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