scholarly journals The inconvenience of the reasonable person standard in criminal law

Derecho PUCP ◽  
2014 ◽  
pp. 505-509
Author(s):  
Juan Pablo Pérez-León Acevedo
Keyword(s):  
Criminal Law ◽  
Minority Groups ◽  
Case Law ◽  
Human Behaviour ◽  
Criminal Cases ◽  
Reasonable Person ◽  
Objective Standard ◽  
Reasonable Person Standard ◽  
Criminal Culpability ◽  
Self Defence

Following American legal sources, I argue that the use of the reasonable person standard in criminal law is inaccurate and unfair, and, therefore, inconvenient to evaluate human behaviour based on three arguments which address flaws of the standard under analysis. Firstly, this standard is  by definition  abstract, theoretical  and  general, not  reflecting appropriately the person’s sensory and ideational perception of the situation. Secondly, the trend in American legislation and case-law is to apply, in criminal cases, e.g., self-defence, a hybrid criterion, which consists in the consideration of a person’s belief and the correspondence of such a belief to what a reasonable person would believe under the circumstances, as opposed to a purely objective standard. The principle of individual criminal culpability underlies this. Thirdly, the reasonable person standard imposes a sort of majority’s dictatorship by perpetuating a predominant culture disregarding the viewpoints from minority groups.

The Reasonable Person Standard: Psychological and Legal Perspectives

2021 ◽  
Vol 17 (1) ◽  
Author(s):  
Mark D. Alicke ◽  
Stephanie H. Weigel
Keyword(s):  
Science Volume ◽  
The Self ◽  
Future Research ◽  
Annual Review ◽  
Publication Date ◽  
Criminal Cases ◽  
Reasonable Person ◽  
Self Defense ◽  
Objective Standard ◽  
Reasonable Person Standard

In criminal cases of self-defense and provocation, and civil cases of negligence, culpability is often decided with reference to how a reasonably prudent person (RPP) would have behaved in similar circumstances. The RPP is said to be an objective standard in that it eschews consideration of a defendant's unique background or characteristics. We discuss theory and evidence suggesting that in morally relevant judgments, including those involving negligence, self-defense, and provocation, the tendency to rely on the self—on one's own values and predilections—dominates considerations of the RPP. We consider subjective standards that have been proposed as alternatives to the RPP and review research on this topic. We conclude by considering avenues for future research, particularly addressing conditions in which self-standards of reasonableness are most likely to prevail. Expected final online publication date for the Annual Review of Law and Social Science, Volume 17 is October 2021. Please see http://www.annualreviews.org/page/journal/pubdates for revised estimates.

Epistemic Responsibility in Sexual Coercion and Self-Defense Law

2021 ◽  
pp. 305-320
Author(s):  
Hallie Liberto
Keyword(s):  
Sexual Coercion ◽  
Sexual Consent ◽  
Epistemic Responsibility ◽  
Criminal Cases ◽  
Reasonable Person ◽  
Reasonable Expectation ◽  
Self Defense ◽  
Reasonable Person Standard ◽  
Alternative Suggestion ◽  
Better Than

Those accused of sexual coercion and unjustified killing can defend themselves in American courts by arguing that a reasonable person in their situation could have held an exonerating belief—respectively: a belief in another person’s sexual consent, or another person’s murderous intentions. In this chapter, Liberto argues that this reasonable belief standard is problematic. Liberto presents an alternative suggestion by Donald Hubin and Karen Healey with regard to cases of sexual coercion that she labels the “reasonable expectation from state” (REfS) standard. Liberto argues that adopting a REfS standard for adjudicating both self-defense and sexual coercion cases is better than the “reasonable person” standard. However, contra Hubin and Healey, Liberto argues that expectations from the state towards victims of these criminal cases—expectations that ascribe epistemic responsibility to the victims—are misdirected.

scholarly journals Victims of Parental Kidnappings in Light of Polish Criminal Law (Based on the Results of Case Law Research)

2018 ◽  
Vol 6 ◽  
pp. 86-100
Author(s):  
Diana Dajnowicz-Piesiecka
Keyword(s):  
Full Article ◽  
Criminal Law ◽  
Case Law ◽  
English Abstract ◽  
Criminal Case ◽  
Criminal Cases ◽  
Parental Kidnapping ◽  
Polish Law ◽  
Article Abstract

[full article, abstract in English; abstract in Lithuanian] This paper concerns the victims of parental abductions in Poland. The aim of the article is to present the victims of parental abductions in the light of the Polish criminal case law. The study has an empirical character because it presents the results of research carried out using a criminal case law analysis. The study included 59 criminal cases concerning the parental kidnapping of a child. The research revealed that the Polish law treats the person from whom the child was kidnapped as a victim of parental kidnapping. Interestingly, the child is not considered a victim. Based on the research, a conclusion was formulated that parental abductions are not only the result of disputes between the parents of a child, but that children can also be abducted from the care of other people, for example, the directors of orphanages or grandparents who look after the children. This article argues that parental abductions are not only a problem for families but also for institutions professionally involved in childcare.

scholarly journals PRIVATE DEFENCE IN CONTEXT OF THE BATTERED WIFE WHO KILLS HER ABUSIVE HUSBAND/PARTNER Ann Elizabeth Steyn v The State (reported as S v Steyn 2010 1 SACR 411 (SCA))

Obiter ◽  
2021 ◽  
Vol 31 (2) ◽  
Author(s):  
Pieter Carstens
Keyword(s):  
Domestic Violence ◽  
Emotional Distress ◽  
Criminal Law ◽  
Case Law ◽  
The State ◽  
Point Of View ◽  
Reasonable Doubt ◽  
High Incidence ◽  
Abusive Partners ◽  
Self Defence

In South Africa where there is a high incidence of domestic violence, it is not surprising to find our reported criminal case law abound with many examples where battered spouses have killed their abusive partners. It is to be noted that all these accused were charged with, and more often than not, convicted of murder. In all these cases extreme provocation and emotional distress ultimately led to the homicide and caused the accused to invoke either non-pathological automatism (sane automatism) and/or nonpathologicalcriminal incapacity as defences. Consequently, it was argued on behalf of the accused that they either acted involuntarily or withoutcriminal capacity, or at the most with diminished criminal capacity at the time of the homicide due to provocation or emotional distress. In some instances, where a voluntary act and criminal capacity were proved, the provocation/emotional distress even had the effect that the state could not prove intention beyond reasonable doubt for a conviction on murder, but had to concede that only a conviction on culpable homicide was justified, as the accused acted negligently under the circumstances. The notion that a battered (provoked) wife/husband/partner who kills her/his abusive husband/wife/partner may or can invoke private defence (self-defence) has rarely been considered by our courts. Provocation or emotional distress, in principle, influences the voluntary act committed by the accused and/or the criminal capacity of the accused and may affect the element of intention, but seldom has any bearing on the element of unlawfulness. After all, private defence requires an unlawful, immediate or imminent human attack perpetrated upon the accused or another person. Since the disappointing decision in S v Eadie (2002 1 SACR 633 (SCA)), in which the defence of non-pathological criminal incapacity due to provocation was effectively abolished (battered wives now have to rely on sane automatism, which is difficult to prove), battered wives who now kill their abusive husbands/partners are “left in the lurch” as it were, specifically in view of systematic assaults/attacks perpetrated upon them by their abusive partners. From a legal point of view it seems as though a “reconfiguration” of the principles of criminal law in these instances is called for. The “reconfiguration” of the defence essentially relates to the material requirements for the unlawful human attack, as well as the requirements for the lawful fending off the attack, specifically in context of domestic violence. It is for this reason that the judgment under discussion is particularly instructive and to be noted. 

Proposals for Reforming the Law of Self-Defence

2008 ◽  
Vol 72 (5) ◽  
pp. 409-440 ◽  
Author(s):  
Amir Pichhadze
Keyword(s):  
Reasonable Person ◽  
Objective Standard ◽  
English Law ◽  
The Law ◽  
Court Of Appeal ◽  
Significant Attention ◽  
Law Commission ◽  
Self Defence

The English law of self-defence has attracted significant attention following the controversial decision of the Court of Appeal in R v Martin. At the heart of the controversy is the determination of the reasonableness of a defendant's apprehension of the necessity to use a particular amount of force in self-defence. When comparing the defendant's apprehension and actions to those of a reasonable person in the same circumstances, what characteristics of the defendant must be attributable to the reasonable person in order for the test to be appropriate? This article argues that while the Court of Appeal's reluctance to allow a psychologically individualised standard of reasonableness may have been correct, the court should have reformulated the purely objective standard into a contextual objective standard. It is suggested that unless such reform is undertaken, the English law of self-defence will remain unduly constrained. Reform proposals by the Law Commission have made it clear that such reform is not on the horizon. As an alternative, the Law Commission proposed a reformulated defence of provocation. While this alternative is commendable, it does not remove the need to reform the objective standard of reasonableness in the law of self-defence.

Reading Between the Text(s) - Interpreting Emoji and Emoticons in the Australian Criminal Law Context

2020 ◽  
Vol 23 (4) ◽  
pp. 655-686
Author(s):  
Marilyn Bromberg ◽  
Larissa Welmans ◽  
Cassandra Lee
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
Criminal Cases ◽  
The World

Emoji and emoticons are becoming increasingly prevalent in criminal law cases around the world, although some judicial officers currently have no experience of them or of interpreting them. This article offers an in-depth examination of the area of emoji and emoticons in criminal law. It provides an overview of emoticons and emoji, including their history, their global popularity of use in modern communication, and their particular interpretative difficulties. It canvasses and analyzes international criminal cases involving emoji and emoticons. It provides a valuable table that lists each such case in which emoji and emoticons are present. In reviewing the existing international case law, this article identifies the handful of cases in which judicial officers have attempted to interpret emoji and emoticons in the criminal law context. However, it also demonstrates the absence of clear guidance on methods of interpreting emoji and emoticons. Most importantly, this article aims to assist filling this void by proffering important recommendations regarding interpreting emoji and emoticons in the criminal law context.

MAIN SPECIFICATIONS OF ASSESSING ACTIVITIES OF MINOR IMPORTANCE OF IN MODERN CRIMINAL LAW

Law and World ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 83-95
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Case Law ◽  
Criminal Code ◽  
The Other ◽  
European Countries ◽  
Minor Importance ◽  
Detailed Review

The research includes the full and the detailed overview of assessing activities of minor importance in Georgian Criminal Law. The Article 7 of the Criminal Code of Georgia states the following: a crime shall not be an action that, although formally containing the signs of a crime, has not produced, for minor importance, the prejudice that would require criminal liability of its perpetrator, or has not created the risk of such harm. The research includes the main criteria of defining activities as activities of minor importance. The detailed review of Georgian case law is also introduced, as well as, legislation, judicial literature and experience of the other European countries.

Errors in the Application of the Criminal Law on Certain Corruption Crimes in Practice of Appeal and Cassation Courts

2020 ◽  
Vol 6 ◽  
pp. 72-80
Author(s):  
A. V. Galahova ◽  
Y. I. Antonov ◽  
Keyword(s):  
Criminal Law ◽  
Criminal Case ◽  
Criminal Cases ◽  
Retroactive Effect

The article is devoted to systematization of generalized appeal and cassation practice on errors in criminal cases of corruption crimes in 2017–2018. Errors are systematized in such areas as the unfairness of the sentence; the absence of a crime in the act; inconsistency of the conclusions of the court set out in the sentence, the actual circumstances of the criminal case; incorrect application of the provisions of the criminal law in time and its retroactive effect.

Theft and Fraud Committed Using Electronic Payment Systems (Regional Judicial and Investigative Practice)

2020 ◽  
Vol 2 ◽  
pp. 66-79
Author(s):  
S. L. Morozov ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Criminal Law ◽  
Legal Analysis ◽  
Payment Systems ◽  
Criminal Cases ◽  
Electronic Payments ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation

The advent of the electronic currency and the effecting of electronic payments has caused new forms of thefts and types of acquisitive crimes. The judicial investigative practice of criminal cases of embezzlement committed using bank cards and other types of electronic payments has encountered problems with the qualification of such acts. The author identifies the most common enforcement problemsand their causesby a retrospective study of judicial practice, the changing norms of the criminal law. At the same time, a ten-year period of work of the judicial investigating authorities was studied. On the basis of traditional general scientific methods of cognition, as a result of a system-legal analysis of the considered set of specific situations, the author gives an author's view of the complex of causes that cause a lack of uniformity in judicial investigative practice. Using the hermeneutic approach, the author paid special attention to the application by the courts of the interpretation of the criminal law by the Plenum of the Supreme Court of the Russian Federation in different years. In conclusion, ways of resolving contentious issues of qualification of thefts and fraud in the field of electronic means of payment are proposed. It has been ascertained that high-quality and uniform law enforcement can provide additional clarification on the delimitation of related and competing theft from the Plenum of the Supreme Court of the Russian Federation. It is concluded that in general, the current concept of the Plenum of the Supreme Court of the Russian Federation does not contain contradictions with the novels of the criminal law, but can be improved. The rationale and edition of possible additions to the relevant decision of the Plenum of the Supreme Court of the Russian Federation are given.

Torts and Other Wrongs

2019 ◽  
Author(s):  
John Gardner
Keyword(s):  
Public Policy ◽  
Distributive Justice ◽  
Strict Liability ◽  
Private Law ◽  
Moral Significance ◽  
Reasonable Person ◽  
Reasonable Person Standard ◽  
The Law

Torts and Other Wrongs is a collection of eleven of the author’s essays on the theory of the law of torts and its place in the law more generally. Two new essays accompany nine previously published pieces, a number of which are already established classics of theoretical writing on private law. Together they range across the distinction between torts and other wrongs, the moral significance of outcomes, the nature and role of corrective and distributive justice, the justification of strict liability, the nature of the reasonable person standard, and the role of public policy in private law adjudication. Though focused on the law of torts, the wide-ranging analysis in each chapter will speak to theorists of private law more generally.

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