LESSONS
L.3 - The subjectfraudulent commission
(II: Objective imputation)
STRUCTURE
I. The so-called "subjective imputation".
Fraud. Concept.
2.Content of malice.
3. Types of fraud.
II.Absence of malice: error of subject.
III.Subjective elements of the wrongful act.
What have you done? (II)
And affirming that a process constitutes human conduct is not possible only through the establishment of a typically relevant risk, but also requires taking into account the subjectivity of the agent, with his potential for knowing and willing. In fact, in ordinary life we say: "it was unintentional", as if to exonerate ourselves from responsibility. What we are affirming is that with respect to some element of our conduct we cannot respond because we lack control over what happened, or we were unaware of some relevant aspect. Regarding what we cannot control, cf. L.1. Let us now focus on the other facet, that of knowing what we do. Whoever does not know something is not responsible for it - one might say. In a more technical way we would say: whoever knows that his conduct involves a risk of the kind that the ruleaims to prevent, and in spite of this acts, is acting maliciously. Assessing what has been done as malicious is the subject of the so-called "subjective typicality" or "subjective imputation".
Subjective criminality requires assessing whether the agent knows what he is doing. At this point, it is important to differentiate between knowing the risk of the conduct and knowing the legal evaluationof that risk. In our conduct, the knowledgeof what we do usually includes knowing both that we are doing something and that this something is good or bad, right or wrong, lawful or unlawful. But the fact that the two are usually given together does not detract from the fact that they refer to different objects: if I may use the expression, it is one thing to know what one does (that I move my hand violently against someone's face) and another to know what one does (that this movement is wrong, unjust). This distinction is at the basis of the classic differentiation between knowledgeof the fact and knowledgeof the law, error facti and error iuris, questions of fact and questions of law..., and which has given rise to the more widespread denominations in current crime theory of error of subjectand error of prohibition (or on unlawfulness).
What is established in subjective criminality is that the agent has represented (i.e. has known) the risk involved in his conduct. The fact that he also knows that this is prohibited is not the object of malice, of subjective criminality, but of guilt(L.10). In final, we understand malice as the agent's representation of the risk involved in his conduct.
This knowledgeis something that belongs to the strict subjectivity of the agent, which the Criminal Law(and the judicial process) cannot access, because the subjective experience of others does not appear before our senses directly, but only indirectly: it is the agent himself who has to tell us what he knows, what he wants, what he wishes (and even then, there is room for error or that what he says is not true). It is also possible that, with respect to the subjective experience of others, we can draw inferred conclusions from external data: what we ourselves do in similar cases, what any person of the same condition, origin and circumstances would do on a similar occasion. Thus, of a person who finds himself during the hours of classin a classroom, bent over a piece of paper, holding a pen, and staring at the blackboard, we say without hesitation that he is attending classand that he knows that he is attending class. Similarly, we infer malice in Criminal Law.
Indeed, the existence of malice, of subjective experience, is imputed on the basis of dataof the experience we all have. Specifically, malice is evident from the rules of experience acquired in the daily learning process and updated at the time of the act, which allow the consequences of one's actions to be anticipated (cfr. Silva and Baldó). Let us see it in C.31.
The etymology of "obligation" may help to understand what the law is: it comes from the verb "ob-ligo", which means to tie, to fasten. Applied to a domestic animal, it means to have tied up, to control. But it is also applied to people, who are not bound physically, but with immaterial, moral ties: obligation. Whoever is bound by an obligation is committed, tied, bound to fulfil something.
C.34
"On 12 March 2000, at about three o'clock in the morning, in 22 Maimonides Street in the town of Adamuz (Córdoba), inside the premises [...] of a discotheque, a public fancy dress party was being held, attended by between three and four hundred people. Among them were Alfredo dressed in a black cannibal costume, as well as Braulio, Carlos and Diego, dressed in other costumes, all of whom had drunk alcoholic beverages, but were in full possession of their mental Schools. At a certain point that night, the four of them met in the hamburger area and at that moment Braulio jokingly said "let's burn the black guy!" an expression that was heard by Alfredo, although he did not know who the voice came from, and by Diego, who never assumed that words would be followed by deeds, while Carlos did not hear it because he was two or three metres away. Then Braulio, with the lighter he was carrying, set fire to Alfredo's lycra costume, which began to burn, and Diego proceeded to put it out with what he had at hand, and Alfredo protested, reproaching them for their behaviour. Despite this protest, Braulio set fire to Alfredo' s clothes with a lighter, which burned completely at the bottom, and although the flames were extinguished by Diego and Carlos, they caused Alfredo second degree burns Degreeon the ankles and feet of both lower extremities and he had to be attended by a doctor, requiring not only initial medical attention, but subsequently he had to undergo two surgical interventions...".
(STS 25 March 2004; pte. Sánchez Melgar; RJ 2004, 3641).
AA.3
According to the rule "actus non facit reum nisi mens sit rea", there is no liability if the mental dispositions of the agent do not concur. The expression "mens rea" refers to the mental disposition of the agent in general (cf. L.1). Criminal Law does not distinguish between intent (pertaining to unlawfulness) and mental states pertaining to culpability (to be studied in L.9-11). This is one of the major differences with the legal theory of crime in continental law.
The categories of mens rea have been formulated differently in the Common Law and in the Model Penal Code. Thus, before the MPC was drafted, there was only a distinction between general intent (the agent acts with a guilty mind) and specific intent (the agent acts with a specific state of mind, formulated in the criminal subject: wilfully, intentionally, voluntarily, etc.). The MPC tried to simplify the broad terminologyof the Common Law and specified the possible states of mens rea in four Degrees. Purpose (intention): this could be said to be the sum of malice and culpability; the agent represents the risk and wants the result. 2. Knowledge (knowledge): this is the next most serious Degreeof guilty mind and is the most similar to the malice of continental law. 3. Recklessness: this is on the borderline between intentional intent and gross negligence. 4. Negligence: this is equivalent to the recklessness of continental law; the subject does not represent a risk that a reasonable person would have represented. However, few states have adopted the terms of the CPM and in many jurisdictions common law terms are still used.
Each criminal subjectrequires a specific mental state (intent, voluntarily, willfully, etc.). Thus, the agent is required to have a certain state of mind at the time of the actus reus. However, some criminal offences do not require a specific state of the mens rea. The criminal subjectis fulfilled only by the realisation of the typically relevant risk, even if the subject does not represent such a risk. These are cases of strict liability (MPC § 1.04), which can be translated as strict liability. However, the courts are increasingly reluctant to accept this classof criminal liability.
On the need for a mens rea or guilty mind: People v. Dillard (California Court of Appeals 154 Cal. App. 3d. 261, 201 Cal. Rptr. 136) 1984. On Common Law categories (general intent and specific intent): Regina v. Faulkner (Court of Crown Cases Reserved Ireland 136 X CC550) 1877. On MPC categories: People v. Ryan (Court of Appeals of New York 82 NY 2d. 497, 626 NE2d 51, 605 NY 52D 235) 1993.
VOCABULARY
- Mens rea
- Try
- General Intent
- Specific Intent
- Purpose
- Knowledge
- Recklessness
- Negligence
- Strict liability offenses
To get started: Jescheck/Weigend, Tratado de Criminal Law. Parte general ( trans. Olmedo Cardenete), 5th ed., Granada, 2002, §§ 29-30.
For further information: Ragués i Vallès, "La determinación del knowledgecomo elemento del subjectsubjetivo (Comentario a la STS de 24 de noviembre de 1995)", ADPCP 1996, pp. 795-822.
Monographic: Ragués i Vallès, El dolo y su testen el proceso penal, Barcelona, 1999.
N.31 The so-called "subjective imputation".
N.32 Absence of malice: error of subject.-
N.33 Subjective elements of the wrongful act.
SYNOPSIS
