How does the law measure what motivates someone to commit a crime? This question has been at the centre of a high-profile murder trial that has just concluded on the Danish island of Bornholm. The case has divided public opinion all over Denmark, and beyond.
In the early hours of June 23 2020, brothers Mads and Magnus Møller drove into the woods with their friend Phillip Mbuji Johansen. The latter thought they were going out for an evening drinking. And, indeed, on the way to the woods, the group stopped to buy beer and vodka – paid for by Johansen. But the brothers intended to “rough Phillip up a bit” as payback for what they characterised as a sexual assault against their mother.
After an hour of drinking and chatting by the fire they had lit, the brothers began their attack. It was a litany of horror that took the prosecutor nearly an hour to describe in court. Both legs broken, fingers broken, nose broken, testicles crushed, branded with a hot iron on ears, face and torso, beaten, kicked and stomped all over his body, Johansen died a few hours later, after asphyxiating on his own blood.
Johansen’s body was found in the morning, and the brothers immediately confessed but insisted they never intended to kill him.
What makes a hate crime?
From the start of this case, a debate began over what role race played in the crime. Johansen was black, the son of a Tanzanian mother and Danish father. The two brothers are white. Mads Møller, the eldest brother, has swastika and white power tatoos.
Magnus Møller told police when he was arrested that he held Johansen down by putting a knee on his neck (the murder occurred only one month after George Floyd’s murder, at the height of Black Lives Matter protests around the world). In Danish law, if a death is characterised as a hate crime, tied to racial animus, it would carry the possibility of an increased jail sentence.
The police and prosecutor on Bornholm quickly removed this from the equation though. They appear to have believed that because there was a personal motive in the killing, it could not also be a hate crime.
“As we see it, it is a completely different motive than skin colour. It is a personal relationship,” the head prosecutor concluded, a few days after the murder. “Nothing points to racism”, the second in command of the Bornholm police said, the same day. The prosecution’s only character witness confirmed this approach at trial, when she testified that Mads Møller wasn’t racist because she “never saw him do anything racist” and because he was “friends with [Johansen] and other non white people”. Regarding his tatoos, she opined that they were meant “to provoke”.
Progressive politicians condemned this narrow reading of racial animus. Black Lives Matter Denmark organised protests, calling the murder on Bornholm a “lynching”. Many called for an investigation into what role structural racism might have played in the case, and noted that hate crimes are significantly under prosecuted in Denmark.
Studies of bias reveal that people voice more conservative opinions when holding a cold beverage in their hands, that judges give higher sentences in the period right before lunch because they are hungry, and that threatening someone’s self-esteem increases their prejudice towards minorities. In other words, bias studies confirm the existence of vast, complex prejudices which we do not consciously recognise or control.
This type of “implicit bias” might explain many facets of the case that were left unaddressed. For example, the personal motive named by the prosecutor was Johansen’s alleged behaviour towards the brothers’ mother.
Long-established racist tropes regarding the danger that black men pose to white women might help explain how the brothers saw Johansen’s alleged behaviour as “assualt” and “rape” - allegations which were widely reported in the Danish press but remain entirely unsubstantiated – as well as why Danish authorities believed this rationale when offered. Implicit bias also might help explain the brothers’ decision to address a conflict with their friend through violence, as well as explain how that violence spiralled so brutally and tragically out of control.
Intent and the guilty mind
Because the brothers confessed to the crime, the question before the court was how to categorise Johansen’s death. This question hinged on the defendants’ states of mind – their intent. The prosecution charged the defendants with murder, arguing they knew Johansen could die from their attack. The defendants, on the other hand, argued they were guilty of manslaughter because they did not intend for him to die. Ultimately a court of three judges and six jurors unanimously found the Møller brothers guilty of murder, and sentenced them to 14 years in jail.
As the prosecutor mentioned many times during the trial, it’s not possible to look inside a defendant’s head and know what they intended. Courts must assess intent through actions. But had the police investigation considered the possibility that the crime was aggravated by racial animus, those charges would be part of the court record. Even had the prosecution failed to prove racial animus, a discussion of the facts would have expanded and enriched the court record. The discussion could have been very different.
Danish courts accept the fiction that they can know a defendant’s guilty mind by his acts regarding criminal intent. Yet as regards racial animus, Danish authorities have proven generally unwilling to allow facts and actions to lead to judicial conclusions. Hate crimes are recognised under Danish law. But in order for them to be prosecuted and thereby punished and deterred, Danish authorities need to start considering how bias and racism are communicated through action.