The Issue of Public Wrongs

CRIMINAL LAW: The Issue of Public Wrongs

(Уголовное право: Преступления)

At earliest English law, because of a lack of legislative law and because of a lack of a place and process to turn to, people were left to blood feuds for resolution of conflict. You hurt me, I killed you. Then your uncle killed me, so my dad killed your dad, etc. В раннем английском праве, из-за отсутствия законодательства, отсутствия  места и процедуры обращения, люди остались на кровной месте для разрешения конфликта. Ты сделал мне больно, я убил тебя. Тогда твой дядя убил меня, так что мой папа убил твоего отца, и т.д.

The community got tired of this. The local baron was worried about the drain on his fighting force. And local religious leaders had a hard time putting a feud into theologically permissive behavior.

So, a "local law" began to appear, with an incentive to people to settle cases by compensation. People in conflict were "invited" to come and sit with others of a community to seek resolution of the conflict.

When the parties could not agree and no one could prove "truth", they were left without a remedy. To have a law is wonderful. To have a process is better. But no remedy means a law or process is of little value.

To determine truth, trial by "ordeal", "combat", or "oaths" was instituted. In "combat", each party got a sword, and fought it out under the theory that God would protect the innocent one. If a person was found "guilty", he, or his heirs, paid something to the injured party and sometimes something to the local baron.

With the Norman Conquest, the new king, intent upon consolidating power, established "King's Courts". Here an injured person (plaintiff) brought action against a wrongdoer (defendant). But all monies (fines) went to the king rather than to the victim; the king had to pay judges, keep an army (the police) fed and clothed, etc. Thus developed Criminal Law, the key components of which are:

The king (state, people) is seen as victim. Crime is considered to be an act which the public desires not to be done, and which the public is willing to punish if it is done. It is a public wrong.

Because the remedy is punishment, some protections of the accused become necessary; we do not want to punish an innocent person. Thus, there can be no crime without a statute, and acts done before there is a statute are not criminal (ex post facto). The statute must set forth every material element of the criminal conduct (no punishment without a "knowledge"). However, we are all presumed to know the law.

The state must prove the defendant did the necessary acts (actus reus) beyond a reasonable doubt. This means that the balance scales must tip to their near maximum. Since punishment is the remedy, we want to be certain that we only punish the guilty, not the innocent.

Defendant must have done the acts with a level of knowledge (mens rea, guilty mind) declared in the statute. Over time, and in order of importance today, this necessary mental state was determined to be: intentional, reckless, or negligent conduct, or strict liability.

After conviction, the question is asked: What punishment should be to carry out the five purposes for punishment: reformation; restraint; retribution; and deterrence (individual or general).

Crime has three major parts: crime against person; crime against property; and crime against the public order.

A crime against person always involves force or threat of force against the body of another (murder, battery, rape, robbery, extortion, kidnapping, etc.).

Crimes against property are distinguished by an absence of force against a person and loss of property is the key (theft, embezzlement, false pretenses, forgery, burglary, arson, etc.).

Crimes against public order include rioting, treason, and most of the "victimless" crimes (prostitution, sale of pornography, drug deals, and, until recently, abortion). Violence to person or loss of property may or may not be present. What is present, is behavior seen harmful to the integrity of community to such an extent as to call for criminal punishment. Sometimes we see these as "moral crimes".

Intent has its own set of definitions:

Specific intent: Defendant has a determination of mind to commit at least one of the required elements of a criminal offense. Example: first degree murder normally requires proof of premeditation, which is a matter of intent found to be existent before picking up the gun, to do an act (shoot the gun) and bring about a result (kill the person).

Transferred intent convicts a person of a result, which they did not intend, but which was a result of the illegal act. Example: I intend to kill A by shooting, but miss and kill B, whom I love and would never kill. My intent to kill A is transferred to B; I am guilty of murder.

Implied intent: We are rational people, intelligent and understanding; so intent to do an act may be implied from doing of the act.

Strict liability: Here there is no need for a mental status. We are liable for doing the act without defense. Example: sexual intercourse with a female under a specified age (statutory rape). Your belief concerning her age (even a reasonable belief) is no defense.

Let's look at some of the common criminal defenses. First, there are istakes of fact. I take a bag of yours at the airport thinking it is mine; we can say mistake of fact, but it really is lack of intent to steal. Or I buy an item not knowing it to be stolen, no intent, no crime. However, if its value is $100 and I pay $1 and the transaction is on a street corner, maybe I am unable to make the defense work for me. Any mistake of fact must be honest and reasonable.

Can my voluntary intoxication be a defense? Generally, no; it is an act of choice, negligent or reckless in character, so it is not allowed as a defense, involuntary intoxication may be a defense.

Another category of defenses is called justification. It includes self-defense, defense of others, defense of property, acts done under apparent authority, and consent. Self-defense is viewed from the mind and the person claiming the defense, not from the mind of a reasonable person. What this means is: we cannot second-guess the action after the fact; if there may have been several reasonable responses, and this was one of them then the defense is good. But the force I use in defense must be proportionate to the force you use against me. An aggressor cannot claim self-defense unless he terminates the conflict and then finds he must defend against the continuing attack of the other. Defense of others normally requires a prior relationship between the person being attacked and the person claiming the defense. Defending one, who later proves to have been the aggressor, means you cannot claim the defense because that person could not claim the defense. Defense of property is very limited as to the amount of force you can use.

Acts done under apparent authority is a defense allowing public officials (and those acting under their oversight) to possibly commit a crime and not be punished, if it was reasonably necessary to doing their job. Consent is a defense where the consent to act would have been illegal, for example, I consent to your battery of me in a boxing match.

Another set of defenses is called excuse. Infancy, necessity entrapment and insanity are classic examples. Historically, infancy defense was available to anyone under the age of 7; they were presumed incapable of forming the intent needed for a criminal act. From 7 to 14 it was presumed they could not, but the presumption could be overturned upon a showing of sufficient age and understanding. Above 14 they were presumed capable. Today, in the U.S., we use Juvenile Courts to deal with people under the age of 18; however, for certain crimes, and at certain ages, youth can be removed from the juvenile system to the adult system.

Necessity (including compulsion, duress, coercion) is a defense where the act is acknowledged, and the criminality of the act is known in advance, but the person claims that they have no choice. The defense is not available in a homicide, very limited in crimes against persons, and normally only found in property offenses. There is involved a sense of emergency response to a situation, and the harm being prevented by the illegal act must be greater than the harm the illegal act causes.

Insanity only became a defense in 1843. It is a direct outgrowth of the issue of intent as is the defense of infancy. When first allowed it was only if one could not understand the difference between right or wrong, or did not have the ability to understand that an act was wrong because of mental disease or defect. It has since expanded to matters such as diminished capacity and irresistible impulse.