LESSONS
L.10 - Guilt
(II: NON-IMPUTABILITY)
STRUCTURE
I. Minority.
II. Insanity and temporary mental disorder.
III. Situations related to intoxication.
IV. Alteration of perception.
V. Extraordinary liability(actio libera in causa).
What happened?
The judgement of reproach directed at the agent for his act is based on the consideration of the subject, in the concrete case, as free. In order to affirm full freedom, it is necessary to accept not only that the subject knows what he is doing (which makes it possible to say that he is acting with volition, i.e. with malice and without violence), but also that he knows what he is doing (which makes it possible to say that he is acting voluntarily). Volition and voluntariness are thus two different ways of referring to freedom. The judgement of reproach that is contained in guilt presupposes (implies) that one has acted both with volition (that there is an act) and also with voluntariness (of the guilty party).
There are cases in which volition exists (the subject is an agent, because he acts with self-control over the surrounding circumstances), but voluntariness is lacking (the subject does not know that what he is doing is unlawful, for example, or lacks sufficient willpower to act in accordance with rule). In such cases, the subject cannot be reproached for having acted in this way: he is not guilty. And he is not guilty because he is unaware of the normative meaning of his act, or because, even if he is aware of it, he is not capable of acting accordingly and respecting legal goods and interests.
We speak of imputability as an element of guilt: reference letter refers to the capacity to be guilty, by virtue of the agent being at status "normal" in his psychic Schools , so as to allow access to the meaning of his act ("he knows what he is doing") and to be guided in accordance with this understanding ("he acts according to what he knows").
The concept of unaccountability encompasses various groups of cases: minority, alienation and mental disorder, intoxication, and altered perception from birth or infancy.
What happens when the agent is a minor, does that make him or her culpable, and are minors incapable of knowing the wrongfulness of what they are doing? If so, do we consider them incapable of being governed by wrongfulness? Obviously not. As it is test that minors are given rules, reproaches, punishments... A minor, from a certain age, can be perfectly aware of the lawfulness or unlawfulness of his or her actions, just as he or she can be guided in accordance with these representations. However, the legal system prefers not to apply the common Criminal Law (penalties) to them, preferring to remove them from the law of penalties and entrust them to the law of security measures, based not on guilt, but on dangerousness. This presupposes - as we have already said - that the minor commits a typically unlawful act. On the other hand, he lacks culpability, the reproach for his conduct (or, at least, we reproach him in another way, different from that of adults). Let us see it in C.101, which also presents a curious and different technical problem.
C.105 - Hans case
The accused, Aurelio F., of legal age and without a criminal record for the purposes of recidivism, at around 8 p.m. on 21 March 1993, being in the company of his partner Beatriz S. at their home in flat No. [...], Los Angeles, Los Cristianos, proceeded to open the door when called by the German national Hans M., who wanted to talk to his partner Beatriz [...], which the accused Aurelio tried to prevent, as he had well-founded suspicions that Hans was trying to interfere in the relationship with his partner, so he tried to close the door, which he prevented by placing his foot between the door and the frameworkof the same, so Beatriz who noticed the altercation left the flat where she was, to talk to Hans in the corridor outside leading to the same. All this produced in the accused Aurelio, a great alteration of mood and passion, due to the insistence of Hans in approaching Beatriz, determining a state of anger or rage that diminished the control of his will at that moment. For this reason, he took a kitchen knife from the flat and went to where they both were, and with the firm intention of making an attempt on Hans' life, purpose, he began to attack him and at a given moment, with the knife, he stabbed Hans with several stab wounds that produced, among others, an incised wound in the left cranial vault, as well as a left temporal intracranial puncture wound that injured cranial nerves, with a subtural haematoma at the site of the wound, so that if Mr. M. had not received urgent medical attention attendancehe would have died. As a result, Hans also suffered injuries [...], leaving him with [...]".
(SAP Santa Cruz de Tenerife, 21 September 2000; pte. Díaz Sabina; ARP 2000, 1702).
AA.10
Excuses are defences that exempt from liability the person who has committed a typically wrongful act. Although they are called defences, the doctrine and jurisprudence of the Anglo-American system explain that, while some defences focus on the act (such as justifications: cf. AA.7 and AA.8), excuses focus on the subject. In the Criminal Law, subjects who prove the existence of one of the following defences are unimpeachable:
Infancy: in common law, children under the age of fourteen lack criminal capacity. For children under the age of seven, this is a rebuttable presumption, while for children between the ages of seven and fourteen it is a rebuttable presumption. From the age of fourteen onwards, minors are considered to have criminal capacity and are tried in the juvenile courts. In this respect, criminal law is similar to continental law. result However, as a result of the increasing juvenile criminality, all states offer the possibility of a "waiver to criminal court". In other words, for the most serious crimes, there is the possibility for the juvenile to be tried in an adult court and not in a juvenile court.
Insanity: Depending on the procedural moment at which it occurs, insanity has different effects. At the time of the commission of the offence it is a defence of insanity (in most offences) or diminished responsibility (in the case of murder). It must be a disease. There are different means of proving insanity or insanity. Some States use the MPC test (§ 4.01 substantial capacity), which repealed the 1954 Durham test. However, most states still apply the 1843 M'Naghten Rule to prove insanity (proving the existence of a disease, as a result of which the crime occurs, either because the subject did not understand the nature of the act or because the subject did not know that the act was wrong). This rule is open to criticism because it understands insanity in terms that current medical science considers obsolete.
Intoxication:Intoxication (result from the ingestion of alcohol or drugs), can impair the possibility of judgement and self-control, and significantly alter the capacity to perceive reality. In order to constitute defence it must exclude the mens rea required by the definition of the offence, from agreement to the combination of three criteria: the subject of the offence, the cause of the intoxication (voluntary or involuntary) and the substance that produces it. As already seen in L.2, there are some offences such as "narcotic addiction", where the fact of being in a state of permanent intoxication is punishable (although case law is reluctant to apply the defence of intoxication in cases of drug or alcohol addiction).
On minority and the possibility of trying a juvenile in an adult court: Kent v. United States (383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84) 1966. On insanity and the application of the M'Naghten rule: People v. Serravo (Supreme Court of Colorado 823 P 2d 128) 1992. On intoxication: State v. Maik (287 A. 2d 715 N.J.) 1972.
VOCABULARY
- Infanc
- Insanity
- Intoxication
For a start: Jescheck/Weigend, Treatise, § 40.
For further information: Silva Sánchez, "El régimen de la minoría de edad penal (article 19)", in El nuevo código penal. Cinco cuestiones fundamentales, Barcelona, 1997, pp. 159-195.
Monograph: Martínez Garay, La imputabilidad penal, Valencia, 2005.
N.101 Minority of age
N.102 Insanity and transient mental disorder.
N.103 Situations related to intoxication.
N.104 Serious alteration of the consciousness of reality.
N.105 Extraordinary liability in case of unimputability (actio libera in causa).
SYNOPSIS
