Mens rea; guilt; Excuses

Mens rea; guilt; Excuses
22nd September 2017

4. Mens rea/ culpability (guilt)-Common LS
Common law: general intent (rape, battery) – it refers to the act, which presumes a general intent it’s important to determine: whether the defendant had a reasonable mistake, and whether defendant’s belief is honest. 2. specific intent (1st murder, robbery, larceny, attempt, conspiracy) – he wants specific result, no presumption; knowledge of the specific result is sufficient Strict liability – mainly used for public welfare offences

Model Penal Code: 1. Purposely - he is aware & wants the conduct/result and is aware of the attendant circumstances 2. Knowingly – he is aware of the conduct, result and the attendant circumstances// and the actor is „practically certain” that his action will cause the criminal offence (Fl 1998, 122) 3. Recklessly – he consciously disregards the risk + a gross deviation from the law-abiding standard of conduct (analogy to conscious negligence) 4. Negligently – should be aware of the risk + a gross deviation from the reasonable person standard of conduct (unconscious negligence) MPC (Fl 1998, 114) „§ 2.02 (2) d): A person acts negligently with respect to a material element of an offence when he should be aware of a substantial and unjustifiable risk that material element exists or will result from his conduct. The risk must be of such nature and degree that the actor’s failure to perceive it, considering the nature and the purpose of the conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation”.- mythical standard of the reasonable person (Fl 1998, 117) - objective/subjective standard

Intentional and negligent wrongdoing (Fl 1998, 112) Dolus (intention) (Fl 1998, 111) Culpa (negligence) Case 1 A pharmacist mislabels a bottle od poison as nutritional food supplement and casually leaves a package of the bottles in the back of the store. A street person finds the bottles of poison and after reading the labels drinks it and dies (Fl , 111)? Will the pharmacist be liable? Is it an accident?

Difference between accident and negligence? Is the ability of the actor to aviod the harm by exercising due care by acting: Reasonably or Nonnegligently Crimes of harmful consequences can occur negligently (e.g. negligent homicide// arson, destruction of property, battery are exempt from liability; Fl 1998, 113, 117)

Case 2 -Commonwealth v. Pierce from 1883 (Fl 1998, 118) Facts An indictment for manslaughter, by causing the clothes of the person killed to be saturated with kerosene, need not allege that the accused knew of the deadly tendency of the kerosene, or that it was of a dangerous tendency. At the trial of an indictment for manslaughter, there was evidence that the defendant, who practiced as a physician, on being called to attend a sick woman, prescribed that her clothes should be kept saturated with kerosene, and that this course of treatment caused her death. The jury were instructed that the defendant was to be tried by no other or higher standard of skill or learning than that which he necessarily assumed in treating her; that is, that he was able to do so without gross recklessness or foolhardy presumption in undertaking it. Held that the instruction was sufficiently favorable to the defendant. Negligent or reckless behavior? If a person publicly practising as a physician, on being called upon to attend a sick woman, prescribes, with foolhardy presumption or gross recklessness, a course of treatment which causes her death, he may be found guilty of manslaughter, although he acted with her consent, and with no evil intent. (Available at: ( ))

Case 3 (Fl 1998, 122) „A secretary whishes to kill her boss. While preparing him a cup of coffee she mistakenly (not accidentally) puts a substance in the coffee that turns out to bee the poison. She may have a background plan and even unconscious intention to kill him, but she does not intentional poison him”. Is she going to be liable? If yes for which offence?

4. Mens rea/ culpability (guilt) Civil LS
Dolus (intention/intent- direct// indirect) -douls directus// dolus eventualis Culpa (negligence- thoughtlessness, carelessness) Excuses (insanity, involuntary intoxication, duress, personal necessity; mistakes (avoidable / unavoidable)– mistakes of law; reasonable mistake about the factual basis of justification, reasonable failure to perceive the running of a substantial and unjustified risk)// Croatia – mistakes and exceeding the limits of self-defense because of strong scare etc. „an excuse does nor challenge the wrongfulness or unlawfulness of the conduct, but merely denies the personal accountability of the actor for the wrongful act„;- Read more: Excuse: Theory - The Range Of Excuses - Law, Duress, Actor, and Personal - JRank Articles excuses.html#ixzz4OHHQgDPS ( )

4. Mens rea/ culpability (guilt) Civil LS
Elements of Guilt „A perpetrator who at the time of commission of the criminal offence was of sound mind, acted with intent or by negligence, was conscious or ought to and could have been conscious of the fact that his/her act was prohibited, provided there is no excusable reason, shall be guilty of a criminal offence (Art. 23 CCC) knowing and wanting; intellectual and voluntary component– basic elements of the intention and negligence Intent (Art. 28 CCC) „1) A criminal offence may be committed with direct (dolus directus) or indirect intent (dolus eventualis). (2) A perpetrator is acting with direct intent when he/she is aware of the elements of a criminal offence and wants or is certain of their realisation. 3) A perpetrator is acting with indirect intent when he/she is aware that he/she is capable of realising the elements of a criminal offence and agrees to this. Negligence (Art. 29 CCC) „1) A criminal offence may be committed by „reckless” („conscious” negligence) conduct or by „unconscious” negligence. 2) A perpetrator is acting „recklessly” („conscious” negligence) when he/she is aware that he/she can realise the elements of a criminal offence but foolishly believes that this will not occur or that he/she will be able to prevent this from occurring.” – (thoughtlessness) „3) A perpetrator is acting with unconscious negligence when he/she is not aware that he/she can realise the elements of a criminal offence, although under the circumstances he/she ought to and, by reason of his/her personal characteristics, could have been aware of this possibility.” - (carelessness)

4. Liability for criminal negligence
„Justification” for liability for negligence Four prerequisites for liability for criminal negligence (p Kelvin..) The actor can foresee the risk The actor violates a duty of care with respect to the protected interest Harm, as defined by the statute occurs The offender could have avoided the harm by careful conduct

4. Common Law (US)- Defenses-Excuses
Excuse as denial of culpability (Fl. 1998, 154) Mistakes Duress and Personal necessity Insanity Involuntary intoxication

Mistakes „is a negation of a required mental state”- (Fl. 1998,155) ‘Material elements’-all substantive elements as opposed to procedural elements (Fl. 1998,155) Relevant (Aristotel- „relevant mistake negates the voluntariness of the actor ‘s choice to engage in the act”; Fl 1998, 149)/irrelevant mistakes („employee in an embassy thinks that by virtue of his job , he should enjoy diplomatic immunity for his offences, so he engages in drunk driving”-Fl , 149) mistakes of fact are usually relevant/ mistakes of law are usually irrelevant (Fl., 1998, ) Mistakes about Factual Elements of the Definition (Type one)- person thinks that he shoots a pig, that is in fact a human being (Fl 1998, 167) Mistakes about Legal Aspects of the Definition (Type two) Mistakes about Factual elements of Justification (Type three) Mistakes about Norms of Justification (Type four) Mistakes about Factual Elements of Excuses (Type five) Mistakes about Excusing Norms (Type six)

Case 4 Hopkins v. State “It is generally held that the advice of counsel, even though followed in good faith, furnishes no excuse to a person for violating the law and cannot be relied upon as a defense in a criminal action” (available at: ) Explaining that "ignorance of the law will not excuse its violation„- mistake of law- court find as irrelevant and formed ‘strict liability”(Fl. 1998, 153); ‘strict liability‘ in the „criminal law should be understood as the practice of disregarding a mistake or accident where as a matter of principle the mistake or accident should be relevant to the defendant's responsibility for bringing about criminal harm.- if the mistake ought to be relevant is treated as irrelevant„ (Fl. 1998, 152); in CCC (Mistake as to Unlawfulness Art. 32); in GCC Mistake of Law (Art. 17. StGB) MPC § 2.04 (3) „A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: the statue or other enactment defining the offence is a defense known to the actor an has not been published or otherwise reasonably made available prior to the conduct alleged; or he acts in reasonable reliance upon an official statement od the law, afterward determined to be invalid or erroneous, contained in: a statute or other enactment; a judicial decision, opinion or judgment; an administrative order or grant of permission; or an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offence” (Fl. 1998, 153)

Excuses-exclude or affect (diminish) guilt Duress (excuse) Common law elements: (1) a “threat of imminent death or serious bodily injury” led the defendant to commit the crime, (2) the defendant had no reasonable, legal alternative to breaking the law, and (3) the defendant was not responsible for creating the threat. duress applies to crimes other than murder Model Penal Code: actor was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, if a person of reasonable firmness in actor’s situation would have not been able to resist.

Insanity (excuse) – If the preson was insane at the time of the deed, he will not be held accountable (Fl., 1998, 152) 4 tests: 1. Durham (product) test - he is not responsible if his act is the product of mental desease or a mental defect 2. M’Naghten (cognitive) test – requires such a defect of reason from disease of the mind that he did not know: a) the nature and quality of the act he was committing; or b) what he was doing was wrong. 3. irresistible impulse test – the defendant could not control his act 4. MPC (cognitive-voluntaristic concept): no responsibility if, as a result of mental disease or defect, he lacks substantial capacity to: a) appreciate the criminality [wrongfulness] of his conduct, or b) conform his conduct to the requirements of law Battered woman syndrome/ Cultural defense /Rotten social background (New defenses)

4. Common Law (US)- Defenses-Excuses– 1 Mistakes about Factual Elements of the Definition (Type one)
mistake of fact This type of mistake will negate the intent (guilt) required for intentional commission of the offence (Fl. 1998, 156) actor doesn’t voluntarily kill a human being if he did not know that it was human being that he targeted (Fl. 1998, 149); person targets a pig, but it was a human that he targeted and killed in Common LS – responsibility for negligence if his action was unreasonable and faultful Two types of this Mistake about Factual Elements of the Definition If he could have know –is the element of the mistake – eliminates the liability for intentional conduct (guilt) if he acted unreasonable and faultful- the element of fault- he will be responsible for negligent behavior (if it is punishable- negligent homicide)- Fl. 1998,156 In CCC Mistake as to the Elements of Constituting an Offence (Art. 32 CCC) In GCC (StGB) Mistake of Fact (Art. 16 StGB) United States v. Feola

4. Common Law (US)- Defenses-Excuses 1
4. Common Law (US)- Defenses-Excuses 1.Mistakes about Factual Elements of the Definition (Type one) Case 5 United States v. Feola Brief Fact Summary: Defendant, during a drug deal assaulted an undercover Federal Officer. The Government appealed the reversal of Defendant’s conviction. Facts: Defendant was charged with conspiracy to commit an assault upon a federal officer. Defendant was alleged to arrange for a sale of heroin to buyers who were undercover agents. However, Defendant planned to substitute sugar for the heroin. An altercation ensued when a federal undercover agent became suspicious. The Trial Court found Defendant guilty, the Appellate Court versed and the Government appeals Issue. Whether knowledge of the intended victim is a Federal Officer is a requisite for the crime of conspiracy. (Could it be a relevant mistake?)- Common LS – NO; Civil LS – yes (for aggravating circumstances) Synopsis of Rule of Law. The act of conspiracy is no less dangerous because of lack of knowledge of fact, thus does not require that Defendant be aware of the body of law they intend to violate. available at: lafave/conspiracy-and-solicitation/united-states-v-feola/ ( )

4. Common Law (US)- Defenses-Excuses 2. Mistakes about Legal Aspects of the Definition (Type two) mistake of law- bat it can be relevant - the elements of the Definition of the offence often contain mixed questions of fact and law; specailly regarding the meaning of the word- e.g. ‘object belonging to another’ abandoned Case 6 Morissette v. United States Facts: Morissette lived near a bombing range. He entered the range, took some shell fragments he found lying around, and sold them as scrap metal. When the Air Force found out what happened, he was arrested and charged with "knowingly converting" government property (18 U.S.C. §641). Morissette argued that he thought that the shell fragments were abandoned property. The Trial Judge instructed the jury that in order to convict they had to find that Morissette intended to take the shells, not that he intended to "knowingly convert" (aka steal) someone else's property. The Trial Court convicted Morissette. He appealed. The Appellate Court affirmed. He appealed. The Appellate Court found that the term "knowing conversion" should have its traditional tort law meaning, simply an intentional exercise of dominion over property that is not one's own. The US Supreme Court reversed. The US Supreme Court found that §641 should be read to require intent as an element, even if it is not explicitly stated in the Statute. The Court found that strict liability has traditionally only be used in very minor offenses (such as parking tickets), and the historical common la has always required intent (aka mens rea) for crimes involving theft. The Court noted that there was no bright line rule for which offenses required mens rea. Basically, this case said that for relatively serious crimes, there must be a mental element on the part of the defendant to commit a crime (aka mens rea). You cannot be found guilty of a crime just because you physically committed the act (aka strict liability). Even though Morissette did take the government property, he wasn't trying to steal it, and he cannot be found guilty (mistake). On the other hand, for minor infractions such as parking tickets, you can be found guilty even if you honestly thought you were parked legally -available at: ( )

4. Common Law (US)- Defenses-ExcusesMistakes about Legal Aspects of the Definition (Type two)
Case 7 Husband (Fl. 1998, )- „In the marital dispute, the husband takes the car (which is joint ownership) with the intent of holding on to it permanently. Ha acts surreptitiously because he doesn’t want his wife to try to stop him…. He interprets the phrase ..’belonging to another’ to mean ‘belonging entirely to another’. Since he is half –owner of the car, he assumes that he cannot be guilty of larceny.” husband is right about common law meaning ‘objects belonging to another’ but wrong about civil law meaning (German & Croatian)- it would be mistake od fact (Art. 16 StGB) or Mistake as to the Elements of Constituting an Offence (Art CCC)

4. Common Law (US)- Defenses-Excuses 3. Mistakes about Factual elements of Justification (Type three) Justification: necessity consent self defense in CCC – Mistake of Fact Justifying an Offence (Art. 31) Case 8 Morgan case- (1970) (Fl. 1998, 159) „Defendant informs his drinking buddies that his wife, waiting patiently at home, enjoys forcible intercourse. She may resist and fight back, but in fact she wants to be taken violently. They come home together from the bar and the husband's friends accept his invitation to force intercourse on the crying and tormented wife.” In this case husband named Morgan and his mates were all convicted for rape the codefendants complained on appeal that they honestly believed that the wife, despite her tears, was consenting- good defense of good faith mistake (The House of Lords concluded)- the judges reasoned that the defendant would not have the intent to engage in nonconsensual intercourse if he believed, however unreasonably, that there was not consent Fl., 1998, 167- relevant only if it is reasonable

4. Common Law (US)- Defenses-Excuses 4. Mistakes about Norms of Justification (Type four) mistake of law- usually irrelevant in CCC Mistake as to Unlawfulness (Art. 32. CCC) In GCC (StGB) Mistake of Law (Art.17.StGB) Belief consent is valid defense in a homicide case Mistaken balancing of competing interests in a case of necessity Mistaken judgement about proportionality in case of self-defese (Fl., 1998, 163)

4. Common Law (US)- Defenses-Excuses 5. Mistakes about Factual Elements of Excuses (Type five) Case 9 (Fl. 1998, 164) „Defendant receives a note informing her that a local gang has installed a bomb in her house and threatens to blow it up unless she point a gun at a bank teller and demands the contents of her cash drawer. The defendant carries out the order and turns money over to the gang. When put on trial for the bank robbery, the defendant claims an excuse of duress…. It turns out that the gang was just bluffing; they did not plant the bomb. This means that the defendant was mistaken about weather the danger was real.” How to approach the problem? In CCC Mistake about the Necessity as the Reason for Excluding Guilt (Art. 22 § 3 CCC)

4. Common Law (US)- Defenses-Excuses 6. Mistakes about Excusing Norms (Type six) mistake of law- irrelevant (does not exist in German CL – it is not Mistake of Law (Art.17.StGB) in Germany nor in Croatia Mistake as to Unlawfulness (Art. 32. CCC) Can one be excused for misunderstanding the scope of an excusing condition? (Fl.1998,165) Someone thinks that threats to property would excuse him if he felt coerced to submit to them (Fl, 1998, 165)- „Reasonable reliance” on mistaken view of the law and he believes his conduct therefore did not „legally constitute an offence” Excuse are not acts executed in reliance on legal norms- mistake of the scope of the legal norm is irrelevant

4.Excuses –Civil Law System- Germany and Croatia
Mistakes Insanity/Mental Incompetence Excessive self-defense Duress/ Necessity as a reason for excluding guilt (Art. 22 § 2 CCC)

4. EXCLUSION (NEGATION) OF CULPABILITY/mens rea- EXCUSES (DEFENSES)
GERMANY US CROATIA Mistakes: mistake of fact (Art. 16 StGB) mistake of law (Art. 17 StGB) mistake of duress (Art. 35 § 2 StGB) Reasonable mistake about the factual basis of justification; Mistakes of law; Reasonable failure to perceive the running of a substantial and unjustified risk Mistakes about Factual Elements of the Definition (fact) Mistakes about Legal Aspects of the Definition (law) Mistakes about Factual Elements of Justification (fact) Mistakes about Norms of Justification (law) Mistakes about Factual Elements of Excuses (fact) Mistakes about Excusing Norms (law) Mistake as to Elements Constituting an Offence (of statutory element of the offence; (of fact ) Art. 30 CCC) Mistakes as to Unlawfulness (Art. 32 CCC); (mistake of law) Mistake of Fact Justifying an Offence (self – defense and necessity; Art. 31 CCC); Mistake about the Necessity as the Reason for Excluding Guilt (Art. 22 § 3 CCC) Insanity (Art. 20 StGB) Insanity Insanity/Mental Incompetence (Art. 24 CCC) Excessive self-defense (Art. 33 StGB) Involuntary intoxication Excessive self-defense (necessary defense) (Art. 21 § 4 CCC)- exceeding the limits of self-defense because of strong scare Duress (Art. 35 § 1 StGB) Duress (force- vis apsoluta/vis compulsiva and threat) Necessity as a reason for excluding guilt (Art. 22 § 2 CCC) - Duress Personal necessity

4. GERMANY-EXCUSES Mistake of fact (Art. 16 StGB)
“(1) Whosoever at the time of the commission of the offence is unaware of a fact which is a statutory element of the offence shall be deemed to lack intention. Any liability for negligence remains unaffected. (2) Whosoever at the time of commission of the offence mistakenly assumes the existence of facts which would satisfy the elements of a more lenient provision, may only be punished for the intentional commission of the offence under the more lenient provision”. Mistake of law (Art. 17 StGB “If at the time of the commission of the offence the offender lacks the awareness that he is acting unlawfully, he shall be deemed to have acted without guilt if the mistake was unavoidable. If the mistake was avoidable, the sentence may be mitigated pursuant to section 49(1).” Mistake of duress (Art. 35 § 2 StGB) “ 2) If at the time of the commission of the act a person mistakenly assumes that circumstances exist which would excuse him under subsection (1) above, he will only be liable if the mistake was avoidable. The sentence shall be mitigated pursuant to section 49(1).” Excessive self-defense (Art. 33 StGB) “A person who exceeds the limits of self-defense out of confusion, fear or terror shall not be held criminally liable “ Insanity (Art. 20 StGB) “Any person who at the time of the commission of the offence is incapable of appreciating the unlawfulness of their actions or of acting in accordance with any such appreciation due to a pathological mental disorder, a profound consciousness disorder, debility or any other serious mental abnormality, shall be deemed to act without guilt”. Duress (Art. 35 § 1 StGB) “A person who, faced with an imminent danger to life, limb or freedom which cannot otherwise be averted, commits an unlawful act to avert the danger from himself, a relative or person close to him, acts without guilt. This shall not apply if and to the extent that the offender could be expected under the circumstances to accept the danger, in particular, because he himself had caused the danger, or was under a special legal obligation to do so; the sentence may be mitigated pursuant to section 49(1) unless the offender was required to accept the danger because of a special legal obligation to do so”.

Mistake as to Unlawfulness (Art. 32 CCC)/ Mistakes of law
4. CROATIA-EXCUSES Mistake as to Elements Constituting an Offence (of statutory element of the offence; Art. 30 CCC) / Mistake of fact “ 1) Whoever at the time of commission of an offence is not aware of one of its statutory elements is not acting with intent. 2) If the mistake referred to in paragraph 1 was avoidable, the perpetrator shall be punished for negligence where the law also prescribes punishment for the commission of an offence by negligence”. Mistake as to Unlawfulness (Art. 32 CCC)/ Mistakes of law “ 1) A perpetrator who at the time of commission of an offence did not know that his/her act is unlawful and was neither required to know nor could have known this, shall not be guilty. 2) If the mistake referred to in paragraph 1 of this Article was avoidable, the perpetrator may be punished less severely”. Mistake of Fact Justifying an Offence (self – defense and necessity; Art. 31 CCC);/ Mistake about the Factual Elements of Justification/ (self – defense and necessity); “ 1) Who at the time of commission of an offence mistakenly believed that there existed circumstances under which the offence would have been allowed, shall not be punished for intentionally committing the offence. 2) If the mistake referred to in paragraph 1 of this Article was avoidable, the perpetrator shall be punished according to the rules on negligence where the law for the committed offence also prescribes punishment for negligence”. Mistake about the Necessity as the Reason for Excluding Guilt (Art. 22 § 3 CCC) “3) If the perpetrator was under an avoidable delusion about the circumstances referred to in paragraph 2 of this Article which exclude guilt, he/she shall be punished according to the rules on negligence where the law prescribes punishment for the commission of an offence by negligence”. Insanity/ Mental Incompetence (Art. 24 CCC) 1) A mentally incompetent person is not guilty and cannot be imposed punishment. 2) A mentally incompetent person is a person who at the time of commission of an unlawful act was incompetent of comprehending the meaning of his/her actions or of exercising control over his/her will due to mental illness, temporary mental disorder, insufficient mental development or some other graver mental disorder. Excessive self-defense (necessary defense) (Art. 21 § 4 CCC)- exceeding the limits of self-defense because of strong scare “4) Whoever exceeds the limits of self-defence shall not be guilty if he/she has done so by reason of excusable great fear caused by the attack”. Necessity as a reason for excluding guilt (Art. 22 § 2 CCC) - Duress “2) Whoever commits an unlawful act in order to avert from himself/herself or from another a coinciding danger not brought on by himself/herself, which danger could not have been averted in any other way, provided that the resulting harm was not disproportionately greater than the harm threatened and that he/she was not required to expose himself/herself to the danger, shall not be guilty. If such a person was required to expose himself/herself to the danger, he/she may be punished less severely”.

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Mens rea; guilt; Excuses

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