66

This came up as a layman’s law question. I thought of this when reading the classic Grimm tale Hänsel and Gretel to my children.

The situation is as follows: The witch imprisons Hänsel with the stated intention to eat (and thus kill) him. Gretel is asked to light the fire in the oven with the stated intention by the witch to use the fire to cook Hänsel. Gretel pushes the witch into the burning oven and closes the door, knowing the witch will die in there. The witch is bigger and stronger than Gretel, so Gretel can’t really hope for a better chance to physically overwhelm her.

Question: How would this be treated according to modern law? Would this be a straight-up murder or can Gretel claim some sort of self-defense and go free?

If the answer depends on jurisdiction just make some reasonable choice.

  • 8
    A reasonable choice of jurisdiction might be German law, and in fact historic versions (e.g., when "Mundraub" still was a thing9 – Hagen von Eitzen Jan 24 at 19:14
  • 1
    @HagenvonEitzen: I was going to suggest that too in my answer, but I'm not overly familiar with German law and Civil Law requires a different form of thinking than Common Law. – hszmv Jan 24 at 19:28
  • @HagenvonEitzen you mean the witch would have been only accused of "Mundraub" because she was so hungry and needed some children meat to survive? Fair point i guess^^ – Frank Hopkins Jan 24 at 21:45
  • @HagenvonEitzen Mundraub is still a thing - not legally, but I remember news stories about German pensioners being convicted for stealing basic groceries (food, toothpaste, toilet paper, that kind of thing). – Nobody Jan 24 at 22:19
  • 1
    Der Fall Rotkäppchen by Jörg-Michael Günther promises to contain a complete juristic treatment of the case (and other Grimm fairy tales). You can find an interview with the author online, which does not add much to the existing answers, however. – Wrzlprmft Jan 25 at 14:53
119

Assuming U.S. Jurisdiction:

In the case of The People vs. Hansel and Gretel Holzfaller:

Ms. Gretel Holzfaller is charged with the following:

  • 1 Count of Murder in the First Degree (Murder of Ms. Witch Hazel)

  • 1 Count of Grand Larceny (Theft of precious metals and jewels from Ms. Hazel)

  • 1 Count Petty Theft (Theft of Candy)

  • 1 Count of Vandalism (Bite marks left in Gingerbread Masonry)

  • 1 Count Trespassing

Mr. Hansel Holzfaller is charged with the following:

  • 1 Count of Accessory to Murder

  • 1 Count of Grand Larceny

  • 1 Count Petty Theft

  • 1 Count of Vandalism

  • 1 Count Trespassing

Ms. Holzfaller has raised the Affirmative Defense of Self-Defense. The defense is problematic on the onset as the court must consider the nature of the case. As a Duty to Flee state, Ms. Holzfaller must show that there was no reasonable way to flee the Witch. The court finds sufficient evidence exists, given that both defendants were detained against their will by Ms. Hazel.

Next, we must consider if Ms. Hazel's actions were within her legal rights. Common law allows citizens to make a "Citizen's Arrest" if they are witnesses to criminal activity and when no law officer is appointed. Should the court find in favor of the state on this ground, then Self-Defense is not applicable as Ms. Hazel was acting within her right to hold the children for crimes committed against her.

This court, however, will not find in favor of the State. Ms. Hazel had kept the children confined to her home for sufficient time for Mr. Holzfaller to put on the substantial weight given his family's inability to provide sufficient meals for a child of his age. Mr. Holzfaller was described as starving and lean upon his disappearance and, upon recovery of Mr. Holzfaller, contemporary media reports took note of his "fat and plump" appearance. Ms. Holzfaller had similarly put on sufficient weight in this time, though not to the degree of her brother. This amount of weight gain in a child is rather unhealthy and disturbing to consider, but more shocking to this court is that any reasonable person could consider such a duration of time a justifiable "Citizen's Arrest". This is in addition to the fact that Ms. Hazel was intending to engage in the murder of the children and the consumption of them. This court cannot find Ms. Hazel's actions reasonable or just and thus will not consider her to be affecting Citizen's arrest.

While Ms. Holzfaller was not herself likely in immediate danger, she was asked to prepare a stove for her brother's imminent murder and consumption. Self-Defense need not apply to one's own self, but can be a legitimate defense when one is defending others from becoming victims of a crime. Furthermore, as the witch was clearly stronger than either Holzfaller's child, Ms. Holzfaller was using only the most reasonable amount of force necessary to incapacitate Ms. Hazel. As such, this court renders the verdict of Not Guilty by means of Self-Defense to Ms. Holzfaller's charge of Murder in the First degree.

With a not guilty verdict rendered, this court will dismiss the charge of Accessory to Murder against Mr. Holzfaller.

We now turn to the lesser sentences of trespassing, vandalism, and petty theft. This court must recall that at the time of the abduction, the children were both younger. In addition, while Ms. Hazel is not able to stand trial for her alleged crimes, given the nature of the previously dismissed murders, this court must consider that the children were enticed by the house and its unusual choice of confectionery as a construction material and that this was exactly the incident Ms. Hazel intended to induce the children into committing. This is not sufficient in and of itself to excuse the Children from their behavior and this court will not allow an excuse based solely on the fact that Ms. Hazel wanted to trap children to satisfy her unusual palate.

As the children were significantly younger when they were engaged in these activities, however, we can reasonably assume that these children were below the Age of Criminal Responsibility and thus did not have the adequate mental development to know that these actions were of a criminal nature. Thus, this court will dismiss these three charges against both defendants.

Finally, on the charge of Grand Larceny, this court finds sufficient merit to go to trial. There is no excuse for theft of property from someone, even if they were trying to eat you. Given the nature of the case, however, this court would be satisfied with dismissing the charges if Mr. and Ms. Holzfaller returned the stolen property to the Estate of Ms. Hazel, and the estates' current custodian, Mr. William Wonka. The Holzfaller family has stated that they believe Ms. Hazel's actions warrant punitive actions against Ms. Hazel's estate, but as this is a criminal court, we find that the property in dispute is rightfully Mr. Wonka's pending the outcome of a civil suit on the matter.

Next on the Docket: The People v. Rumpelstiltskin on 3 charges of Counterfeiting Currency.

  • 15
    :s/pallet/palate. – Eric Towers Jan 24 at 16:45
  • 11
    Attractive nuisance doctrine is going to be very helpful to Hotzfaller children in their suit against Hazel's estate. – Ze'ev wants SE to do teshuva Jan 24 at 17:25
  • 7
    @Ze'evwantsSEtodoteshuva That popped into my head, too, but I'm not so sure. Attractive nuisance would hold the witch liable if the gingerbread roof collapsed on the children, for example, but I'm not sure that it absolves the children of their trespass or vandalism. The gingerbread house is attractive, yes, but there is no "nuisance" that would threaten to harm child trespassers. The source of danger is the witch herself, but people do not fall under the attractive nuisance doctrine. The house itself caused no injury whatsoever. – Nuclear Wang Jan 24 at 18:28
  • 28
    What evidence do we have that Ms Hazel intended to kill and eat the defendants? As far as I can tell this is alleged only by those self same defendants. – CJ Dennis Jan 24 at 23:48
  • 6
    "Furthermore, this court directs CPS to open an inquiry into the actions of Mr and Mrs Holztfaller Senior pertaining the events that led to Mr and Ms. Hoztfaller (junior) to become lost in the woods in the first place..." – Shadur Jan 25 at 10:55
18

In Germany children below the age of 14 like Hänsel and Gretel cannot be punished for any crime. The prosecution should bring the entire situation to the attention of the family courts, which might opt for congregate care. This would be for their welfare, not as a criminal punishment.

If they were minors above the age of 14 or adults, they could try to argue self-defense or one of the related sections. Self-defense is the necessary action to defeat an imminent unlawful attack against oneself or others.

  • Defending Hänsel comes under the same laws as defending herself. Gretel could have run away from the hut of the witch rather than escalating to lethal force if it was just about herself, but she had to consider her brother.
  • People who exceed the necessity test in panic or confusion will not be punished if the court believes that defense (§33 StGB).
  • If the witch was clearly suffering from dementia (and if Gretel knew that, otherwise §33 StGB applies), then a different section with stricter proportionality tests might apply (§34 StGB).
  • I think an insane person attempting to kill somebody is an unlawful action and self defense still applies - with some stricter necessity tests. The fact that the attacking person can't be held responsible for their actions doesn't make them lawful - they just won't be convicted for (attempted) murder. If the insanity was caused by substances that the attacker consumed before the attack, § 323a StGB ("Drunkenness") might apply. – Thomas Jan 27 at 15:58
  • @Thomas, I thought that this would exactly be the $324 example. – o.m. Jan 27 at 16:32
  • An (intentional) attack that is not justified or otherwise permitted (e.g. self defense, arrest by police) is always unlawful. The attacker might be insane which limits the "intensity" of your defense action maybe even to the point where you have to actually "tolerate" the attack, but it is still self defense. § 34 is for dangerous situations. If there's a fire in an apartment, someone is screaming for help but you can't open the door without breaking it, then you're allowed to do that. – Thomas Jan 27 at 20:02
  • @Thomas, edited. – o.m. Jan 28 at 6:36
15

In the UK, the key here would be the presence of evidence to back up Gretel's claim of self-defence mitigation, in the sense that she was motivated by the need to prevent a serious crime from occurring against her and her brother.

In the story, we learn that the Witch was planning to kill her brother

“Get up, lazy bones; fetch water, and cook something nice for your brother; he is outside in the stable, and must be fattened up. And when he is fat enough I will eat him.”

As well as killing Gretel herself.

“Creep in,” said the witch, “and see if it is properly hot, so that the bread may be baked.” And Gretel once in, she meant to shut the door upon her and let her be baked, and then she would have eaten her. But Gretel perceived her intention, and said, “I don’t know how to do it; how shall I get in?”

As such, there would be, assuming there was sufficient evidence to prove the Witch's murderous intent, an overwhelming public interest reason for the CPS not to proceed with a prosecution against Gretel.

(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

Criminal Law Act (1967) Part I, Section 3

That being said, there is the matter of the theft of property that occurred after the Witch died.

“This is something better than flint stones,” said Hansel, as he filled his pockets; and Gretel, thinking she also would like to carry something home with her, filled her apron full [of pearls]

Both Hansel and Gretel illegally expropriated property from the house of the Witch after her death. Although it's possible that the children could argue that the attempted abandonment of their father and their extreme deprivation were mitigation for their actions, I fail to see how they could fail to be charged with theft under the Theft Act.

Additionally, unless there was additional forensic evidence that the Witch had indeed murdered other children, it's quite likely that the police wouldn't believe their story of the events of the death and would press for a prosecution on the charges of murder, theft and a failure to notify the police or coroner of a death.

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10

Since the Gebrüder Grimm had studied law, they would have been familiar with the terms Notwehr (Self-defence) and Nothilfe (defence of others).

Since the witch was attempting to murder Gretel's brother Hänsel, II 20.9 §517 of the Prussian common law would have considered the method used as an appropriate means to prevent this murder by the young child.


Allgemeines Landrecht für die Preußischen Staaten (01.06.1794)
Zweyter Theil
Zwanzigster Titel. Von den Verbrechen und deren Strafen
Neunter Abschnitt. Von Privatverbrechen
durch Nothwehr zugefügt worden,
§ 517
Jeder hat die Befugniß, die ihm, oder den Seinigen, oder seinen Mitbürgern drohende Gefahr einer unrechtmäßigen Beschädigung, durch der Sache angemessene Hilfsmittel abzuwenden.

General land [common] law for the Prussian states
(01.06.1794)
Part two
Twentieth title. Of the crimes and their punishments
Ninth section. Of private crimes
been inflicted by emergency
§ 517

Everyone is empowered to avert the appropriate means by means of the danger of unlawful damage that threatens him, his or his own, or his fellow citizens.

§ 41 Preußisches Strafgesetzbuch von 14.04.1851
Notwehr
Ein Verbrechen oder Vergehen ist nicht vorhanden, wenn die That durch die Nothwehr geboten war. Nothwehr ist diejenige Vertheidigung, welche erforderlich ist, um einen gegenwärtigen rechtswidrigen Angriff von sich selbst oder Anderen abzuwenden. Der Nothwehr ist gleich zu achten, wenn der Thäter nur aus Bestürzung, Furcht oder Schrecken über die Grenzen der Vertheidigung hinausgegangen ist.

Section 41 Prussian Penal Code of April 14, 1851
Self-defense
There is no crime or misdemeanor if the deed was commanded by the self-defense. Defense is the defense that is necessary to avert a current illegal attack on yourself or others. The emergency defense must be respected immediately if the perpetrator has only gone beyond the limits of the defense out of consternation, fear or terror.

Section 32 German Criminal Code (after 1st January 1872)
Self-defence
(1) Whoever commits an act in self-defence does not act unlawfully.
(2) ‘Self-defence’ means any defensive action which is necessary to avert a present unlawful attack on oneself or another.


Sources:

5

We have a case State vs. Norman where

a wife killed her husband while he was sleeping. At trial, she testified that the killing was self defense under battered wife syndrome, as it was provoked after years of physical and psychological abuse.

But,

the Court held that the wife was not entitled to self-defense as defendant was not in imminent fear of death when homicide occurred.

The witch has imprisoned the kids and the next step that follows is pushing them in the oven, which she even admits to the kids. So I would argue there is imminent danger of death.

-5

Hänsel and Gretel are minors in Germany in either 17th or 16th century. Which means that they are the property of their parents and they have no rights. Child labour on the fields from dawn to dusk is normal. Being married at Gretel's age and not having a word in it is normal.

Basically, they are things, not individuals. Seeing how their parents led them in the forest to die, they're abandoned property, and thus property of the finder (the witch).

As property of forementioned witch, they owe said witch obedience. As things, they do not have rights. Self-defense therefore does not apply. Hanging would be the likely penalty.
A century later, iron collar or pillory would likely be adequate for the minor offenses (such as stealing food), but still not for the murder. Plus "donkey riding" (which is really loaded edgy beam riding) for being disobeyant.

  • 7
    They were certainly not things. Even much older codices protected the life of children. Infanticide or foeticide was always a crime and a heavy one at that. Early age marriages do not change that nor does labour change that. – Vladimir F Jan 25 at 18:58
  • 6
    Very unrealistic answer. At that time (1810) hanging was the general punishment for murder. A father that killed his child was quartered. Does that sound like something that would be done to a (as you call them) a thing?? – Mark Johnson Jan 25 at 20:04
  • @Mark Johnson Wrong on two accounts. In 1810 that was no longer the case, death sentence being rather an exception, not the rule. However, H+G is located well before that time. We do not know when, but 1610 is more like it. – Damon Jan 26 at 19:15
  • 1
    Yes, I was wrong, wasn't quartering but Breaking wheel. Last executed in 1841. §.874. Murder of the children or spouses is punished with the wheel from below, and with the crime of the criminal being dragged to the place of execution. Replaced(1841-4-10) with §180 where only the death penalty in meantioned. Since the breaking wheel and self-defence (Vim vi repellere licet) since the Romans (6th century) times, it may assumed also in 1610. Feel free to adapt your answer with verified source if you continue to claim otherwise. – Mark Johnson Jan 26 at 20:26
  • Correction: 1851. The Breaking Wheel was used as an extreme form of the death penalty (normally beheading or hanging for murder) and is meantioned 21 times in the part II of 01.06.1794 law (same link as in my answer). – Mark Johnson Jan 26 at 20:50

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