Exploring Mens Rea: Intent, Recklessness, and Negligence

Chapter 7: Forms and Aspects of Mens Rea - - Actus non facit reum nisi mens sit rea  two basic elements must be fulfilled o Actus reus objective elements  conduct, consequences, or circumstances o Mens rea subjective or fault elements of every crime (intention or negligence) Strict liability cases disregard mens rea element Proof of mens rea denotes a sufficient degree of control and choice over actions safeguards that the defendant is only held liable if he had the capacity and opportunity to do otherwise In terms of deterrence or retribution  punishment based on unfortunate outcomes is neither deserved nor useful I. Different Fault Elements Compared - - Distinguishment between intention and negligence  all other things being equal, the intentional actor is more culpable than the negligent actor  possibility to limit criminal liability (some crimes can only be committed if committed intentionally) In Dutch and German law = two major kinds of mens rea are distinguished: intention and negligence English law = intention, recklessness, and negligence 1) Direct intent or dolus directus - - - Intention (dolus) = most serious fault element  knowing and wanting o Cognitive part o Volitional part In civil law systems interpretation in a broad manner  Dolus directus  Dolus indirectus  Dolus eventualis Direct intent: will or desire of the actor to bring about a certain result o ‘Acting in order’ or ‘deciding or seeking to bring about’ Volitional component = dominant  not required that the actor was aware of the certainty of high likelihood of occurrence of the consequence  important = that he has the completion of the offence as his purpose – will to realize o A weak cognitive aspect, foreseeing only a small chance of success, us compensated for by a strong volitional aspect of desiring the result A man want to shoot his wife with a firearm and shoots from a short distance  intended to kill (can be deducted from the objective conduct in these circumstances) If man shoots from distance, knowing he is a bad shooter and it is likely for him to miss his target, doesn’t make the intent less present  the intent is not less direct  liable for an attempt to kill her with dolus directus 2) Indirect Intent (Dolus Indirectus) - Actor knows his conduct will almost certainly bring about consequences that he does not desire or primarily aim at Defendant wants to bomb an airplane after which he wants to collect insurancemoney purpose is not to kill the passengers – but to reach his goal he knows the death of these people is almost certain - - - Cognitive element (knowledge of certainty/ high degree of probability) = more dominant than any volitional requirement  result known/believed to be a condition of the achievement of the purpose  considered to be intended, even when not desired Mere foresight is insufficient  dolus eventualis and recklessness Indirect  state of mind of the actor is not aimed directly at the result of the offence definition of the crime but at another, further goal that does not form part of the offence definition  offence = indirect foal of the actual purpose In the case of dolus director = offence = direct goal test of failure did his plans fail if the offence wasn’t realized? - Side effects that are almost certain to accompany the achievement of the purpose of the other Both are just as culpable  defendant accepted the outcome o In case of dolus indirectus = actor is aware of the certain consequences  can be considered to still be in control of the events 3) Conditional Intent (Dolus Eventualis) a. Civil law distinguishes conditional intent (dolus eventualis) Defendant was aware of the possible side-effects of his actions, and he decided to act nonetheless, accepting these side-effects Culpability = conscious risk-taking Meaning and rationale - Conditional (eventualis) occurrence of the result (the harmful consequence) is dependent on uncertain circumstances Possible risk must occur  if it doesn’t materialize, conditional attempt is still given Intent itself = unconditional Enables. An extended interpretation of intent b. Awareness of a risk - Cognitive element = awareness of a risk o German law = defendant only needs to be aware of any possible chance that the risk may materialize o Dutch law = degree of this risk must be considerable Dutch Supreme Court, 20 February 2007, NJ 2007, 313 When sentencing HIV carriers and asking whether they should be sentenced for intent, the Dutch court allowed intent only under certain risk-increasing circumstances, which were rarely applied, so no HIV-positive person with bodily injury was convicted under Art. 302 DCC. The case concerns a man who infected his partner through unprotected sexual intercourse, even though he knew he was a carrier of the virus. This was anal intercourse, which is considered very risky in the medical field because micro-injuries occur quickly and the virus enters the body more quickly through blood exchange. However, the supreme court held that even if the risk was elevated, it could not be considered a special risk-increasing circumstance. o - c. In Germany if person knew about the HIV infection und would not use a condom, it is said to have consciously taken for granted the risk that his or her partner would be infected  convicted for inflicting serious bodily injury §223 GCC, or attempting to do so if infection didn’t follow  a small chance of infection is still unreasonable to take, given the great harm that may result from infection and the easy way to almost neutralize this risk by using a condom Low probability is often seen by German courts as an evidential indication that the actor di not accept the consequences occurring o The less likely something was to occur – the more likely a court will therefore decide that the defendant did not accept this possibility Acceptance of the risk - Defendant has to accept the possibility that the risk may occur Volitional element distinguished from culpa or negligence o If defendant sincerely believes that the risk would not materialize  conscious negligence - German courts: ‘approve’, ‘accept the result and approve it’, ‘taking unto the bargain’, and ‘acquiescence’ - Netherlands: ‘conscious acceptance’ or ‘taking the consequences into the bargain’  actor must either endorse the result or at least come to terms with it for the sake of the desired goal German Leather Belt case The defendants wanted to take the victims money and drugged him to minder his resistance. Since that didn’t work, they strangled him with a leather belt. While doing this, it came to their mind that the victim might not be able to act anymore because of the drugs and that there was a possibility of killing him which they didn’t intend or wanted. Supreme Court = guilty of conditional intend  foreseeing consequences as possible (für möglich halten) and approving them (billigen) - - - Difficult to prove volitional element inner disposition of actor  courts focus on the externalization of the presumed will  conduct under certain circumstances + rules of general experience  inferred what defendant thought and wanted  reference to objective facts and circumstances  objective approach = eventualis = still accepted If the objective circumstances indicate that it is more than probably that he did accept the possibility that the risk would occur Contra-indications o Circumstances indicating that the defendant did not accept the consequences o Dutch Case law = danger to the actor himself o German case law = fatal consequences only serve as an indication that the defendant didn’t accept the possibility of dying for himself – presumption that defendant did not take these fatalities for granted supreme court will allow interference of intent to kill from dangerous acts only in extremely violent acts If the actor acts despite knowing the great risk, extremely dangerous conduct makes it obvious that he/she took the occurrence of the result into the bargain, leaving the outcome to chance 4) Recklessness a. English concept – similar function to dolus eventualis – middle ground Recklessness = separate form of fault – dolus eventualis = lowest degree of intent In English law = stricter application of intent because of lack of dolus eventualis Reckless actor = less culpable than the intentional actor A subjective test - Recklessness = conscious taking of an unreasonable risk Risk doesn’t have to be taken for granted Defendant was aware of a risk that is, in the circumstances known to him, unreasonable to take Focusses on awareness (1) Caldwell recklessness 1982 R v Cunningham 1957  endangered Defendant broke a gas meter to steal money from it the life of his mother-in-law who slept next door when the gas would seep out maliciously administering a noxious thing so as to endanger life Maliciously  intentionally/recklessly accuses has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it = subjective test Caldwell Case Caldwell was an employee in a hotel and held a grudge against the owner. He caused a fire leading to  House of Lords stated regarding intention or recklessness, that damage and was charged with arson ‘reckless’ as used in the definition of mens rea would be an ordinary English word and should therefore not  would includefailing to give any thought to whether or only be limited to the Cunningham meaning not there is any such risk = objective test - Caldwell => awareness of risk and taking a risk without thinking of the consequences Issues: o  blurred the distinction between recklessness and negligence o  under-inclusive = reckless behavior if a person either realizes there is a risk and takes it anyway or when he fails to see a risk that, by the objective standard of a reasonable man, he ought to have seen  doesn’t deal with persons who think of possible consequences, but concludes there are none (=negligent) (2) R v G recklessness R v G and another Two kids set newspapers on fire and put a wheelie bin over it, not thinking that the fire could expand to the bin setting the shop on fire House of Lords: Lack of awareness negated charge of recklessly damaging property (overruling Cardwell’s objective test) A person acts recklessly with respect to o A circumstance when he is aware of a risk that it exists or will exist o A result when he is aware of a risk that it will occur And it is, in the circumstances known to him, unreasonable to take the risk Recklessness requires awareness – awareness can be interfered from objective facts and circumstances b. An unreasonable risk - - c. Defendant needs to be aware of any degree of risk + needs to be unreasonable o Important: awareness need not relate to the unreasonableness of the risk but only to any existence of a risk Objective assessment = whether a reasonable man having such foresight would have proceeded with his conduct notwithstanding the risk o Normative assessment: likelihood of its occurrence, nature and extent of the harm, & social utility Recklessness in HIV cases - Even if chance of infection = small  harm caused = serious  risk = unreasonable + no social utility in having unprotected sex R v Adaye 2004 o Defendant didn’t know about his infection, but court found it sufficient that he was aware that there was a higher risk of infection for him o Knowledge for reckless HIV infection = not only actual knowledge of being HIV positive, but also knowledge that one may be infected  problematic in cases of prostitutes 5) Negligence or Culpa - - a. Least serious fault element Germany = negligence doesn’t carry criminal liability unless a particular provision provides for its punishment §15 StGB Primarily based upon a violation of the required duty of care  causing a result prohibited by criminal law Civil law systems = conscious & unconscious negligence o Conscious negligence = where actor foresees a possibility of a consequence resulting from his conduct, but wrongfully relies on the idea that the result would not occur considers wrong o Unconscious negligence = actor (because of lack of care= wrongfully does not consider the consequence of his conduct doesn’t consider at all English law = always unconscious because recklessness is already the third fault element o Not popular o Only exception = grossly negligent manslaughter Conscious negligence - Awareness of a risk but doesn’t take it for granted (trusting in a good outcome) Main difference between dolus eventualis and conscious negligence = attitude of actor o Dolus eventualis = foresight + actor has reconciled himself with the result  Perpetrator recognized as possible and not entirely unlikely that the consequence as specified in the offence definition would occur and agrees with this in the manner that he accepts the consequence and approves of it o Conscious negligence = foresight (subjective test) + a reasonable man would have accepted that possibility (objective test)  Perpetrator does not agree with the materialization of the offence element he recognized as possible and seriously trusts that this offence element will not materialize b. Unconscious negligence - - - The actor should have been able to foresee that the offence would be fulfilled by his carelessness Violation of a duty of care makes it foreseeable that the harm would occur Truly ignorant people can be convicted also Punishment because the defendant should and could have been aware of the risks Objective part o Breach of duty of care  if there was a breach of a duty – generally considered for it to be careless o Causal connection between duty of care and the consequence Subjective part o Generally assumed o Exceptional criterion – can negate culpa it is appears that this defendant, given his capacities, could not meet the required standard of care o Individual characteristics considered when establishing what degree of diligence can be expected = professional position, role, education, and age  Garantenstellung = actor enters special situations, accepts a function  must abide by the applicable riles and is considered to be competent to carry out the activity Degree of carelessness must be gross o Only culpa lata (gross negligence)  one must meet the required level of mindfulness and alertness II. Demarcation from premeditation and motive - Some offence definitions contain more subjective elements thant the failt elemetns of intention, recjlessness and/or negligence Article 287 DCC He who intentionally takes the life of another is, as guilty of manslaughter, punished by a term of imprisonment of not more than fifteen years of a fine of the fifth category. - Most serious form of intentional killing = murder Art. 289 DCC He who intentionally and with premeditation takes the life of another person is, as guilty of murder, punished by life imprisonment or a term of imprisonment of not more than thirty years or a fine of the fifth category - - o Adding element of premeditation Premeditation = defendant’s weighing of contrasting motives and the decision to break the law psychological element of reflection implying a higher degree of control and legal hostility o Precedes the intentional act of killing Netherlands = mere opportunity to reflect  murder §212 StGB (1) Whosoever commits murder under the conditions of this provision shall be liable to imprisonment for life. (2) A murderer under this provision is any person who kills a person for pleasure, for sexual gratification, put of greed or otherwise base motives, by stealth or cruelly or by means that pose a danger to the public or in order to facilitate or to cover up another offence - - III. - In German law, manslaughter (§212 StGB)  intentionally killing, without being a murderer = liability for not less than five years of imprisonment  important to distinguish motives form intent Dolus = value-neutral, no moral connotations, doesn’t include evil motives English law = o Mens rea = value-neutral – demarcation of fault elements from motive o Motives may relate to wrongfulness and blameworthiness and may therefore become relevant for the application of justifications and excuses Strict Liability Some offences don’t require a fault element  strict liability offences Strict liability offences pragmatic purpose = strengthens the hand of enforcement Common in English law and in the Netherlands; in German law rejected Objective element is needed (actus reus) + defendant can raise a defense of due diligence (Sorgfaltspflicht) o Speeding & exceeding the speed limit – but tempometer was incorrect  defendant must then demonstrate that he did everything he could reasonably do to avoid the mistake o Particularly important for professional actors  must abide by strict duties of care o If due diligence defense is accepted = acquitted because the defendant was blameless (jot because the fault element was lacking)