Cognitive Void In Relation To Attendant Circumstances As Subjective Mens Rea

2015 ◽  
Vol 18 (3) ◽  
pp. 418-476
Author(s):  
Guy Ben-David
Keyword(s):  
Criminal Law ◽  
Mental State ◽  
Basic Assumption ◽  
Cognitive Theory ◽  
Criminal Liability ◽  
Mental States ◽  
Mens Rea ◽  
Normative Approach ◽  
State Of Mind ◽  
Definition Of

How should the criminal law treat a person who did not pay any attention to the existence of attendant circumstances noted in the definition of an offense? This mental state of lack of attention to the existence of the attendant circumstance is analogous to the existence of a void in the actor’s consciousness, and has therefore been awarded the name “cognitive void.” Because the criminal law is founded on cognitive theory that offers a binary concept to establish an accused’s state of mind depending on the existence or absence of cognition, it is difficult to impose criminal liability on an actor who acted out of a cognitive void. The purpose of this Article is to discuss the difficulty that it engenders and the attempts to solve this difficulty. The Article presents the proposed thesis, suggesting that different states of cognitive void should be examined in accordance with the extent of culpability that they represent. Therefore, the Article calls for the abandonment of the prevalent basic assumption that sees cognitive void as a state indicating lack of subjective mens rea, and suggests replacing it with a normative approach that would recognize cognitive void as a multidimensional term covering a range of different mental states.

The Structure of Criminal Liability: Complicity

1996 ◽  
Vol 30 (1-2) ◽  
pp. 146-153
Author(s):  
Miriam Gur-Arye
Keyword(s):  
Criminal Law ◽  
Mental State ◽  
Criminal Liability ◽  
Criminal Code ◽  
Draft Code ◽  
Actus Reus ◽  
The Law ◽  
Definition Of

The notion of “wrongdoing” is not recognized by the Draft Code. Nor does it classify the criminal law defences as either justification or excuse. Rather, the Draft Code distinguishes between “an offence” and “an act”. The term “offence” is used to cover cases where theactus reusis committed with the mental state required by the definition of the offence, by an offender who is criminally liable. An offender who has a defence, even a personal one, such as insanity, mistake, or duress, commits “an act”. The term “act” is used to indicate that defences negate the criminal nature of the act.I have elsewhere elaborated on the question whether or not a criminal code which aims to reform the criminal law should distinguish between justification and excuse. There I have both discussed and evaluated,inter alia, the proposals of the Draft Code in this context. Therefore, I shall not elaborate on this subject any further. I shall rather focus on the law of complicity and shall discuss three main issues.

Intention and Belief at the Root of Moral Culpability and Legal Mens Rea

2020 ◽  
pp. 87-116
Author(s):  
Michael S. Moore
Keyword(s):  
Criminal Law ◽  
Mental State ◽  
Mental States ◽  
Mens Rea ◽  
Brain Sciences ◽  
Moral Culpability ◽  
The Brain

In addition to action, responsibility in morality and in the criminal law requires that a certain mental state accompany that action. In criminal law this is termed the requirement of mens rea, or “guilty mind.” The mens rea requirements of the criminal law and of morality are built entirely out of the concepts of intention and belief. These concepts are charted in some detail, both with respect to their nature and with respect to the content they must have to give an accused a “guilty mind.” The demands made on psychology by such use of intention and belief in the criminal law are also charted, particularly demands on the precision with which the brain sciences can ascertain the content of such mental states.

Structure and Nomenclature

2021 ◽  
pp. 26-50
Author(s):  
A P Simester
Keyword(s):  
Criminal Law ◽  
Mental State ◽  
Criminal Liability ◽  
Mens Rea ◽  
Basic Framework ◽  
Actus Reus ◽  
The Law ◽  
Physical Elements

This chapter discusses criminal law’s structure and working doctrines, offering some preliminary remarks about how the major legal doctrines relate to the principles identified in the previous chapter. In terms of the basic framework, it is conventional these days for common lawyers to divide up the law of crimes into three rather broad groupings: actus reus (the so-called ‘external’ or ‘physical’ elements of the crime); mens rea (the defendant’s mental state or, sometimes, the lack of it); and defences. The master question for criminal liability then becomes one of concurrence—is there a moment in time at which the actus reus and mens rea requirements of the offence are simultaneously satisfied, and there are no defences available? However, this threefold division is not clean, and the contents of each part are not independent of one another. The chapter presents a rough structural sketch of the criminal law.

3. Mens rea

2021 ◽  
pp. 79-125
Author(s):  
Michael J. Allen ◽  
Ian Edwards
Keyword(s):  
Criminal Law ◽  
Mens Rea ◽  
State Of Mind ◽  
Mental Element ◽  
The Law ◽  
Definition Of

Course-focused and contextual, Criminal Law provides a succinct overview of the key areas on the law curriculum balanced with thought-provoking contextual discussion. Mens rea refers to the mental element necessary for a particular crime. This may differ from one crime to another and the definition of each crime must be examined to determine what state of mind is required. This chapter discusses the meaning of intention, knowledge, recklessness, wilfulness, direct intent, oblique intent, ulterior intent, transferred malice, and mistake. These mens rea topics raise important questions about the extent to which a person is responsible and therefore deserving of blame and punishment. A revised and updated ‘The law in context’ feature examines critically the debates between those who favour subjectivist and objectivist approaches to mens rea, with particular reference to reform of the offence of unlawful act manslaughter.

scholarly journals Re-visiting the Concept of Mens Rea: Challenging the Common Approaches Employed under Islamic Jurisprudence and Statute Law

2016 ◽  
Vol 9 (4) ◽  
pp. 1
Author(s):  
Fatemeh Ahadi
Keyword(s):  
Criminal Law ◽  
Common Sense ◽  
The State ◽  
Mens Rea ◽  
Islamic Jurisprudence ◽  
State Of Mind ◽  
The Common ◽  
Definition Of

In the present paper the traditional and customary perspectives on the concept of Mens Rea are challenged and a new definition of the same is put forward. The challenge is based on the idea that the concepts in criminal law need evolution in order to keep their function and practicality. Such an evolution demands such a condition wherein, while granting the characteristics of adaptability with the contextual conditions and principles of criminal law, the maintenance of the same is ensured. The mens rea is customarily defined as ‘culpable state of mind of the accused when committing an offence under criminal law and ‘rebellion intent’ under Islamic Jurisprudence. Both definitions of the concept have the capability to undergo evolution and, thus, a new definition of the same is envisaged herein as such that the mens rea constitutes ‘the culpable linkage of mind with the forbidden conduct’. Two changes are observable in the new definition compared with the existing one: first, the ‘state of mind’ is replaced with ‘linkage of mind’; second, the interpretation of the term ‘culpable’ as an independent constituent shall differ as per the common sense and the contextual conditions. The new definition grants dynamism to the concept and resolves the problems long associated with the definition of the mens rea under the criminal law.

scholarly journals The Prejudicial Effects of "Reasonable Steps" in Analysis of Mens Rea and Sexual Consent: Two Solutions

2018 ◽  
pp. 933
Author(s):  
Lucinda Vandervort
Keyword(s):  
Sexual Assault ◽  
Personal Experience ◽  
Common Law ◽  
Criminal Code ◽  
Decision Makers ◽  
Sexual Consent ◽  
Mens Rea ◽  
State Of Mind ◽  
Definition Of ◽  
Is Failure

This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake about whether a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by section 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded in their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable,” given what the accused knew, the legal definition of consent in section 273.1 is easily overlooked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. The result is failure to enforce the law. The author proposes: (1) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and (2) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent.

scholarly journals THE “CRIMINAL LAW OF VICTIM” AS A CRIMINAL LAW MODEL

2018 ◽  
Vol 2 (2) ◽  
pp. 14-19
Author(s):  
Irina Aleksandrovna Tretyak
Keyword(s):  
Criminal Law ◽  
Legal Status ◽  
Criminal Liability ◽  
Theoretical Models ◽  
Legal Personality ◽  
Basic Model ◽  
Legal Method ◽  
Analysis And Synthesis ◽  
Definition Of ◽  
The Impact

The subject. The article is devoted to analysis of the basic models of criminal law and the impact of victim’s legal status on the criminal legal theory.The purpose of the paper is to substantiate the existence and the importance of “criminal law of victim” as basic model of criminal legal theory.The methodological basis of the research includes general-scientific methods (analysis and synthesis, system-structural approach) as well as academic methods (formal-legal method, method of interpretation of legal texts).Results and scope of application. The definition of the role of the victim, the importance of his legitimate interests in the implementation of criminal liability is complicated by the fact that the basic models of criminal law developed by science – “criminal law of the offender” and “criminal law of the crime” – do not consider the victim as a subject of criminal legal relations.The theoretical models of criminal law are embodied in the criminal law, specific legal rela-tions, law enforcement acts, etc., in connection with which there are specific indicators – the parameters by which it is possible to determine which model of criminal law is implemented.If the question of the criminal legal personality of the victim is controversial, in my opinion, there is no doubt that the victim is a party to the criminal law conflict, which often begins to unfold long before the crime.Conclusions. Recognizing the victim as a subject of criminal legal relations, as well as a par-ticipant in the criminal law conflict, it is possible to talk about the formation of a new model of criminal law – “the criminal law of victim”.

4. Negligence and strict liability

2021 ◽  
pp. 126-150
Author(s):  
Michael J. Allen ◽  
Ian Edwards
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Criminal Liability ◽  
Strict Liability ◽  
European Convention ◽  
Mens Rea ◽  
The Law ◽  
Sexual Services

Course-focused and contextual, Criminal Law provides a succinct overview of the key areas on the law curriculum balanced with thought-provoking contextual discussion. This chapter discusses the meaning of negligence, arguments for and against negligence as a basis for criminal liability, the meaning of strict liability, the origins of and justifications for strict liability, the presumption of mens rea in offences of strict liability, defences to strict liability, and strict liability and the European Convention on Human Rights. The feaeture ‘The law in context’ examines critically the use of strict liability as the basis for liability in the offence of paying for the sexual services of a person who has been subject to exploitation.

25. Intoxication

2017 ◽  
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Mens Rea ◽  
State Of Mind ◽  
Mental Element ◽  
The Law ◽  
Definition Of

This chapter discusses the law on offences involving intoxication. It distinguishes between voluntary and involuntary intoxication, and between ‘specific’ and ‘basic’ intent. Cases are presented to show that state of mind is both a necessary element in the definition of an offence as well as in some defences. Just as intoxication may cause a person to lack the mens rea of an offence so it may cause him to have the necessary mental element of a defence.

5. Murder

2017 ◽  
Author(s):  
John Child ◽  
David Ormerod
Keyword(s):  
Criminal Law ◽  
Legal Reform ◽  
Self Control ◽  
Mens Rea ◽  
Loss Of Self ◽  
Life Sentence ◽  
Actus Reus ◽  
Definition Of ◽  
Partial Defences ◽  
Controversial Nature

This chapter focuses on the offence of murder within the context of criminal law, with particular emphasis on its problematic and controversial nature. It first considers the definition of murder in terms of actus reus and mens rea. It then discusses the defences to murder, including general defences, specific complete defences (e.g. cases involving doctors and the treatment of terminally ill patients), and partial defences (e.g. loss of self-control, diminished responsibility, and suicide pact). It also outlines potential options for legal reform concerning the mandatory life sentence and the mens rea of murder, and concludes by presenting a structure for applying the actus reus and mens rea for murder to problem facts. Relevant cases are highlighted throughout the chapter, and there are also boxes that highlight common pitfalls to avoid and other areas of confusion for those new to the law.

Sign in / Sign up

Export Citation Format

Share Document