Saturday, February 21, 2009

China's Great Wall of Silence: Beijing, November 2008. Part XI

A person’s mentality is of central importance in the criminal law. It is important as applied to victims, witnesses, and perpetrators. Many rape cases turn on the mentality of the victim: did she consent to sex? A witness’s credibility is undermined if (s)he has a bias (a mental state) toward one side or the other.

For this reason the characterizations of mentality made by those who I interviewed in Beijing, and of others in books and articles, have been of particular significance because the Great Wall of Silence concerns a crime, the murder of Bian Zhongyun.

As important as it is as applied to victims and witnesses, the mentality of the perpetrator is the fulcrum of criminal responsibility under law. Previous articles have examined the mentality of the victim and witnesses in Teacher Bian’s murder. This article examines the mentality of the perpetrators, which is called mens rea, from the Latin.

A particular mens rea can vitiate culpability entirely. For example, a toddler who picks up his father’s gun and shoots a playmate is not held criminally responsible. There is an irrebuttable legal presumption that one so young does not know the nature and consequences of his actions.

The mens rea is also what differentiates degrees of seriousness of the same crime. The mens rea for First-degree murder is “premeditation.” If premeditation is not proved then a lesser degree of unlawful homicide, with a different mens rea, may exist, but the mens rea for the crime charged must be proven before a person can be convicted of that crime. However, as the example of the toddler above was meant to illustrate, the mental capacity of the perpetrator to commit any crime is sometimes in question.

Mr. Wang said that Chinese under Mao had a “slavish mentality.” Others have used the same, or similar, terminology. Dr. Li Zhisui described Zhou Enlai as Mao’s “slave” (1) and “dog” (2). Jung Chang has written that Chinese were “programmed” by Mao. (3) An “obedient” mentality and a “please” mentality are terms that others and I have thought about. “Crazy,” and “insane” are terms that have been used to describe the general mentality during the Cultural Revolution and of individuals, such as Mao. (4)

Ma Jisen’s characterizations were particularly intriguing because the words she used have specific meaning in criminal law:

[Mao’s various purges and campaigns] had carried with them the reversal of what many believed to be right or wrong. (5)
Thus all those taking part in the work [against the “May 16 Clique”] must give up any inclination to think for themselves and restrict themselves to obeying the leadership. (6)
From the very start of the Cultural Revolution, ideas of right and wrong were turned upside down (7)

Right and wrong during Mao's time was totally distorted. (8)

Mao's idea of right and wrong was different from that of the universal value and common sense. (9)

During the CR, all the right and wrong were messed up. (10)

You may say these persons, Red Guards, rebels, or other revolutionaries, didn't know what they did was wrong. On the contrary, they thought and were thought by some others to be doing revolutionary deeds. They were not torturing human being, but class enemy. (11)

People were educated to be kind to people of revolutionary classes, while be ruthless to class enemies. (12)

The Gang [of Four], like Mao himself, might not kill or torture anyone by their own hands, but they were the sources of the crime by their ideas, speeches, orders...(13)
Before proceeding further, it is critical to note two things: One, these characterizations are those of “normal” people (i.e. non-lawyers) in normal intercourse, i.e. general conversation or non-legal books. Second, these characterizations are general: they are of the Chinese people, not of a particular individual. Criminal law, whether international or national, applies to individuals. Jiang Qing was on trial in 1980, not the Chinese people. It was her mental state (“just following orders”) that was at issue, not that of Chinese. Adolph Eichmann was on trial in 1962, not the German people. It was Eichmann’s mental state (“just following orders”) that was at issue, not the mentality of Germans.

This is not a criminal trial but an article on an historic event that was a crime and which historic event is being examined from the perspective of the criminal law. The specific mental characteristics of an individual Red Guard cannot be presented as they would in an actual trial. For this article, characterizations like those above, and those below, will be used to construct a generic mens rea of “Red Guard.”

The characterizations above implicate two legal defenses only one of which, that below, applies to murder:

Red Guard is not guilty if she can prove by clear and convincing evidence that:
1. She had a mental infirmity, disease, or defect, and
2. Because of this condition:
A. She did not know what she was doing or its consequences, or
B. She did not know that it was wrong.

Even if Red Guard believed that what she was doing was morally right she is still guilty if she knew that what she was doing violated societal standards or was against the law.

All persons are presumed to know what they are doing and its consequences and all are presumed to know right from wrong. Red Guard must prove by clear and convincing evidence that she did not know what she was doing or its consequences or did not know that it was wrong.
Unrestrained passion or ungovernable temper is not a defense under law, even though the normal judgment of the person is overcome by passion or temper.

1. Dr. Li Zhisui. The Private Life of Chairman Mao. 2582. Ibid. 470.3. Jung Chang. Wild Swans: Three Daughters of China. 6334. A good reference work of the scholarly literature on a “Chinese mentality” is Guo Wu’s “Injured Self-Image: Rethinking the Critique of Chinese National Character as an Intellectual Discourse,” in The Chinese Historical Review, 14, no. 2, (Fall 2007): 266.
5. Ma Jisen. The Cultural Revolution in the Foreign Ministry of China (hereinafter “Foreign Ministry”). p.166. Ibid. 2727. Ibid. 4058. Ma Jisen. Personal communication with author.
9. Ibid.10. Ibid.11. Ibid.12. Ibid.13. Ibid.