Two cases of culpable homicide (1)
Kenneth Roy
Two cases of culpable homicide (2)
Bob Cant
Stuart Walker
I never met Stuart Walker and in the normal course of events would have been unlikely to do so. Nearly 40 years younger than me, he grew up in Cumnock, an Ayrshire town which I’ve never visited. It was only the horrific mode of his death in October 2011 that brought him into my consciousness. His body was found early one Sunday morning, kicked, beaten, burned and tied to a post.
It came as a shock to the small town where everyone more or less knows everyone else for such a brutal murder to be committed in their midst. It came as a different kind of shock to Stuart’s friends and family; they had to deal with their own sense of loss about the popular 28-year-old man; they also had to engage with the possibility that because Stuart had been openly gay he had been the victim of a homophobic hate crime.
Last November his killer, 18-year-old Ryan Esquierdo, was sentenced to 12 years in prison for culpable homicide and attempting to defeat the ends of justice; in addition, he will be subject to a supervision order for five years on his release. Many of Stuart’s friends, as well as his supporters on the RIP Stuart Walker website, had hoped and expected that, if found guilty of murder, he would receive a life sentence. But Esquierdo’s lawyer made a plea that his client was guilty of culpable homicide on account of diminished responsibility; this diminished responsibility was said to have resulted from the post-traumatic stress disorder (PTSD) that had developed following his experience of sexual abuse as a child.
The acceptance of this plea by the prosecution meant that there was no trial and his family and friends were denied the opportunity of their day in court to help them to understand what had led to this brutal killing. Had he been convicted of murder and sentenced to life imprisonment, he would have been subject to a licence with powers of recall to prison were he to be suspected of any similar violent behaviour in future.
Stuart Walker and Esquierdo did not know each other well but they had bumped into each other late one night. They had got talking and one of the topics which had been raised was Esquierdo’s confusion about his sexuality; Stuart had been sympathetic to this and, as the conversation developed, some kind of sex act had taken place. It was at this point that Esquierdo had been said to experience flashbacks which triggered his violence; this had culminated in his strangling Stuart for four minutes and setting fire to the body before taking steps to cover up his own involvement in the death of the man who had befriended him.
Many people were puzzled by the statement of Derek Ogg, Esquierdo’s lawyer, that what had occurred was not a hate crime. This was based on the question of motivation; the legal definition of a homophobic hate crime states that the crime is ‘motivated by prejudice or ill will based on a person’s sexual orientation or perceived sexual orientation’. The claim that Esquierdo’s sense of responsibility was diminished by flashbacks from his childhood would, presumably, have been grounds for arguing that his behaviour was not caused by the kind of prejudice or ill will mentioned in the act. While it is an interesting hypothesis, it seems to a layman like myself that it should have been explored in court with experts being subjected to standard cross-examination. That old chestnut about justice being seen to be done springs to mind.
One of Stuart’s relatives described how the loss of Stuart has left such a big hole in his family. Their grief is, to most of us, unimaginable. And on another level, the killing will have had an impact on young people who may be going through a period of confusion about their own sexuality. What are they to learn from this death and the legal response to it? They are not experts in the niceties of legal language and many will be puzzled about the implications of this judgement. Does it mean that killing a person who knows things about your sexuality that you don’t want anyone else to know is somehow less serious than killing someone after an argument about a parking space?
I recall taking several calls during the time when I was a volunteer on a gay helpline from men who felt distressed about the fact that they had beaten up another man with whom they had had sex; they had not been forced into having sex but they could not accept within themselves that they desired another man. This kind of inner conflict is not uncommon in societies which are actively intolerant of homosexuality. It is the kind of problem that teachers might discuss with their students in class but, given that 79% of Scottish schools do not even bother to have a policy on homophobic bullying, there can be no expectation that discussions about the emotional and legal aftermath of sexual confusion will happen in many schools. Silence reigns.
There is also the question of Esquierdo himself. Given that he is said to be suffering from a form of PTSD that can generate fatal violence, he is clearly in need of ongoing, in-depth psychiatric treatment. It’s the kind of treatment that you might expect a convicted criminal to get in the high-taxing, social democratic Scandinavian countries but there is almost no chance of it here in the UK. He will be lucky if he gets as much as one psychiatric appointment per month until such time as he is freed into society once more. After his period of supervision is over, there will be no mechanism in place to monitor his behaviour or to offer him support when he needs it. Society may well be less safe as a result.
The case of Stuart Walker has certainly made me think more about the question of hate crimes. I am coming round to the view that consideration needs to be given to the impact of a crime as well as the motivation of the perpetrator. But, that said, following an incident where hatred has been expressed, there is no simple way to secure justice. Stuart’s family and friends clearly feel no sense of justice. The likely failure to secure proper treatment for Esquierdo’s PTSD means that there will be no resolution for him. The fact that the legal and medical practitioners were not required to bring their arguments out for consideration in the public domain leaves laypeople like myself with a strong sense of dissatisfaction.
We cannot, however, expect the law alone to offer justice in relation to homophobic hatred until such time as society confronts the homophobia in its midst. The use of abusive language by powerful people talking about same-sex desire and the silence of many institutions in relation to the complexity of same-sex desire are both extremely problematic. Marriage equality is sometimes said to be the last stop on the road to equality for gay people and while it may be the last stop on the road to legal equality, there are still large reserves of prejudice and ill will about the expression of non-heterosexual feelings.
While confused young people feel themselves caught in a trap between the verbal thuggery of some institutions and the silence of others, we are likely to see the development of more psychoses and the curtailment of more young lives. A broad social movement to undermine homophobic prejudice and ill will could begin to help Scots people to feel more at peace with themselves in relation to sexuality. It might provide a tiny element of justice for those who love and miss Stuart Walker but there’s some way to go yet.
Bob Cant is the editor of ‘Footsteps and Witnesses: Lesbian and gay lifestories from Scotland’
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