The Right to Kill in Kansas

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In 1992, the Kansas legislature amended the state's involuntary manslaughter law to include an "intentional killing (based upon) an unreasonable but honest belief that circumstances existed that justified deadly force.''  I doubt that the legislature intended this amendment to mitigate religiously motivated terrorism, but that's precisely what it will do if Scott Roeder, on trial for murdering Kansas abortion doctor George Tiller, is allowed to present an involuntary manslaughter defense, pursuant to the trial court's ruling last week (a ruling now being challenged by prosecutors.)  What's the difference, after all, between Roeder's "honest belief" that he was impelled to kill an abortion provider to save "the unborn" and the honest beliefs of suicide bombers and other murderous jihadists?  What terrorist engaged in a holy war doesn't sincerely believe that "circumstances justify deadly force?"
   
Roeder's trial is not supposed to be a referendum on abortion, but Judge Warren Wilbert has, in effect, treated it as one.  If Tiller had been, say, a gerontologist instead of an abortion provider, if Roeder murdered him because he harbored an honest belief that Tiller was euthanizing his patients, I bet the judge would not have been quite so sympathetic to an involuntary manslaughter defense.  The law does generally offer some leniency to delusional defendants in the forms of diminished capacity or insanity defenses; but the Kansas involuntary manslaughter statute does not seem to have been intended to apply in those cases.  As the Supreme Court of Kansas has observed, the Kansas law is intended to provide an "imperfect right to self-defense," which allows a defendant to present evidence of his subjective belief in the need to use deadly force to repel an imminent threat.  The Court quoted from the legislative history:
  

This new subsection covers intentional killings that result from an unreasonable but honest belief that deadly force was justified in self-defense.  In essence, the defendant meets the subjective, but not the objective, test for self-defense. This so-called "imperfect right to self-defense" is recognized in various forms. Kansas apparently recognizes it for unintentional killings under involuntary manslaughter. ... The Model Penal Code also follows this approach. Some states, e.g. Illinois, recognize this partial defense for intentional killings....

   
Tiller who was shot and killed in church presented no imminent threat to anyone, as the prosecution has argued.  Roeder claims he regarded Tiller as imminently dangerous to unspecified fetuses, because he operated an abortion clinic.  If his defense succeeds, the right to life movement will have effectively won the right to kill.

UPDATE: At a hearing this afternoon, Judge Wilbert declined to bar Roeder from raising a voluntary manslaughter defense.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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