Leave it to me to find a “quirky” murder charge called murder by omission. I read about it somewhere and wanted to know more. That’s usually how my writings begin. Whether there is a plethora of material or not, I can usually make “somethin’ outta nothin’ “ if the answer is not-Naught! In this case, such a legal concept appears to be few and far between in the United States.
Someone online known as known as “Coragraph” stated his opinion as: “Murder by omission is very rare — it can only be found where the person had a significant affirmative duty to act, and choose not to act when required to do so by law. The courts will rarely find such a duty to act, absent special circumstances.”
Two such circumstances are the custodial parent of a child, who refuses to seek proper medical attention — and someone who causes the original problem, and then does nothing (or not enough) to correct the harm done.
One such case frequently cited occurred in the Corpus Cristi, Texas in which potential adoptive parents Hannah and Larry Overton. They met Andrew, a 4-year-old, at their Evangelical church, wishing to add him to their family of several children. However, little did this couple know of his serious medical conditions, never revealed to them. According to an Express News account in September 2008 and recounted in a truthinjustice.org article, some of the salient facts of the case include:
- An official diagnosis of acute salt poisoning was one cause of death
- The State accused Hannah of feeding him salty creole spice AND neglecting to get medical attention promptly; Andrew may have consumed the equivalent of 6 teaspoons of salt or 23 teaspoons of a creole seasoning.
- His birth history- Andrew was born to a drug and alcohol addicted teen that neglected him. Other problems included delayed speech, social immaturity and a voracious appetite- including PICA behavior.
- Andrew had a disorder known as PICA – an insatiable need to eat inappropriate things (Cigarette butts, debris on the ground, human waste, cat food etc.)
- (Sidebar: I saw such behavior when I worked in an institution for the severe-profoundly “retarded” and autistic persons. Totally freaky! ) Andrew broke a glow stick and tried to “drink the liquid.’
- Although the prosecution claimed Andrew was force-fed, they balked, as he was very strong. However, Hannah did say that she gave him stew with the creole spice and then water sprinkled with more of the spice. After which he vomited and lost consciousness.
- She claimed he “had been acting weird and continuously eating inappropriate things for two days prior to his death.
- Dr. Michael Moritz, an expert in salt poisoning never had the opportunity to testify. He believed that Andrew died of eating a very large concentration of salt all at once rather than his Pica or underlying medical condition. His salt level was the highest ever recorded in the literature.
- There was no evidence of force, salt on his body or salt crystal in his mouth, no lacerations….
- But there was omission …and the failure to call 9-11
- Hannah had been in a car accident and was in much pain. She summoned her husband. They took him to an urgent clinic, but it was too little, too late.
- On September 12, 2007, Hannah was convicted of a mandatory life sentence without parole while her husband, who was also charged with capital murder, pleaded no contest to negligent homicide and given two years probation.
- OMISSION TO ACT WITH A SEVERELY IMPAIRED CHILD… WHY WAS THIS COUPLE NOT GIVEN THE PROPER BACKGROUND TO MAKE AN INFORMED DECISION ABOUT ADOPTION? WAS THIS COUPLE EQUIPPED TO TAKE CARE OF ANOTHER CHILD WHEN THEY HAD FIVE CHILDREN ALREADY?
Another Case in England-
- Very similar in circumstances… Angela Gay and her husband were wrongfully convicted of causing the death of their adopted son Christian. His birth history was very similar to Andrew’s. He was irritable with constant thirst with diabetes and other abnormal behavior, later attributed to brain damage.
- Christian had lived with the Gays only one month prior to him slipping into a coma and dying.
- This couple was serving a five year sentence and accused of feeding him four teaspoons of salt.
- The Gays were “slow to realize that their son was gravely ill.”
- British child welfare officials did not disclose any health problems, as in Andrew’s case
- The Gays were acquitted of all charges after MDs testified that a brain malfunction caused his salt levels to rise to fatal levels.
The Tragedy of the MV Sewol in Korea –
On April 16, 2014 288 passengers on board perished as well as others deaths, with still others missing in a disaster that was entirely preventable.
As reported in The Sewol Ferry Tragedy as a Warning
Article 34 of the Constitution of the Republic of Korea clearly states, “The state must endeavor to prevent disasters and protect the people from their danger.” While the immediate cause of the Sewol’s accident might be attributable to the captain and the owner of the ship, the government bears the most direct responsibility for saving not a single passenger who was left in the ferry.
The Captain, 1st Class and 2nd Class Officers and the Chief Engineer are being indicted for murder by omission in Korea according to Kang-Ju won of the K-law Guru.com (May 15, 2014.) Murder in Korea can include life in prison or the death penalty. However the death penalty has not been utilized since 1997.)
The author states that the elements of Murder by Omission include:
- A duty to act, to prevent danger and did nothing-left the ship early and did not try to save passengers;
- The intent to kill another person where the perpetrator foresees that his act can cause death and yet persist-not caring;
- Loss of life and Causation-Proof that the defendant’s omission-inactions were substantially related to all deaths
(Even though some were rescued after the defendants jumped ship.)
Reportedly, to date no person in Korea has ever been convicted of Murder by omission in a “calamity –accident related” case. Author Kang Ju won feels they will mostly likely be found guilty of murder (without omission) and serve long sentences.
Background of the Sewol Mismanagement and Incompetent Oversight
- The world watched helplessly as hundreds of lives drown to death because of the combination of corruption, ineptitude, and irresponsibility pervasive in today’s Korea.
- The previous administration relaxed the regulations on a ferry’s life and safety, allowing the Chonghaejin Maritime Transportation, the Sewol’s owner, to import an aged ship and add more room for passengers and cargos;
- The safety inspection and the certification of the ship were left to private entities formed or heavily influenced by ferry owners;
- The Park administration allowed the Chonghaejin to hire temporary workers, including the captain, at a low wage and without adequate safety training;
- The government turned a blind eye to the illegal overloading of the ferry.
- The Park Geun-Hye administration fail to mobilize its resources to rescue the passengers in a timely manner:
- The Coast Guard never issued an order to rescue the passengers, but only a call to salvage the ferry; and it relied on a particular private company for the rescue and salvage, and protected the company’s monopolistic operation.
- The Park Geun-Hye administration also walked away from democratic accountability by abandoning its responsibility to protect the people, systematically controlling the media, and mobilizing the police to isolate and surveillance the victims’ families.
Whether we are speaking of overwhelmed, and unprepared parents, dereliction of duty by maritime officers, or law enforcement, murder by omission is attributed to deliberate actions or inactions causing death. It appears to be fraught with problems and may be incorrectly applied. Is it any wonder that few states have it on the books or apply correctly? Is it semantics after all, or can it mean the difference between life and death for the accused? We must always consider the victim, as an omission in this context, is another life taken.
Who is there to be your voice to the court, or with Board of Pardons and Parole when you clearly are too distraught and consumed with emotion to convey your opinion on the fate of the murderer?
- Can you trust someone else to present a generic picture for you?
- Can you trust that another relative or friend will say what is needed?
- Can you trust yourself to maintain control?
If the answer to any of these questions is doubtful, trust in me, a skilled writer and homicide survivor and advocate with over 30 years experience. If you have been given sufficient time to prepare a victim impact statement, perhaps I can help.
For more information, please contact me about Victim Impact Statement Assistance.