C.43 - Manzanilla case
A., who was pregnant, went to B. to have an abortion. To this end, B. repeatedly gave her infusions of camomile tea, in the belief that it was a suitable product for this purpose, but without any effect, given the total harmlessness of the infusion.
Facts based on those of the judgement of the German Imperial Court (Reichsgericht) of 24 May 1880: RG 1, 439. Cfr. Alcácer Guirao, "Caso del abortivo inocuo", in Casos que hicieron doctrina at Criminal Law, pp. 81-93.
Kills those who think they can poison with an infusion of camomile tea?
I.These simple facts show how B. has repeatedly acted by giving A., who is pregnant, a series of infusions with the aim of causing the death of the foetus. The question is whether these actions give rise to criminal liability.
II.On the basis of these facts, and focusing mainly on B., the following should be noted.
II.1. All that has been described in the facts leads to the affirmation of the concurrence of human conduct: offering, proposing or administering a drink are processes in which it is unthinkable that anyone would be involved without the existence of self-control on their part. Precisely the choice between one means or another, between one infusion or another, or the repeated administration of infusions, leads to the assertion of self-control on the part of B., who would therefore carry out a series of human behaviours.
II.2.We focus on the offence of abortion (Art. 145 ff.) and leave aside the offence of fraud (in the case of a price and deception of B. to A.). Are the administered and ingested infusions causal for the death of the foetus? From entrance, there is no foetal death, so the question of causation and the consummation of the abortion subject does not arise. However, it must be considered whether it is an abortive conduct (i.e. whether it is typical of the offence of abortion), albeit incomplete (some acts of subject are carried out, but not all: attempt). For this to be the case, it is necessary that the conduct carried out must involve at least one risk within the meaning of the subject in question. In this case, the risk of the conduct is not that it is insignificant, but that it lacks any relevance to cause death. In other words: the ingestion of camomile tea does not pose the slightest risk to life. Therefore, the conduct does not fulfil the subject goal of the crime of abortion.
However, we know that B. provides this substance with the firm intention of causing the death of the foetus: in the agent's representation there does appear to be a mortal risk, although in the realisation it proves to be absolutely ineffective for this purpose. In other words: it would be a risk that only exists in the agent's representation, but not in the extramental reality. What criminal-legal relevance can such a status have? The risk only exists in what the agent represents himself: insofar as it is limited to that, there is no danger that would make the Criminal Law intervene. As soon as the representation of the danger is shared in a rational inter-subjective context, we can speak of the existence of a danger "goal", which would make the intervention of the Criminal Law advisable. But in this case, such a circumstance does not arise, but everything is left to B.'s hypothetical approach.
III.Her conduct is atypical already at the level of goal as such a crime of abortion, as her conduct lacks the dangerous character required for the crime (unrealistic attempt). And his subjective representation is not sufficient, even if it is purpose to commit an offence, to justify criminal intervention.
Cf. C.72.
