8 Criminal law

Introduction

Criminal law is the body of law relating to crime, so conduct that is prohibited by the state because it threatens, harms or otherwise endangers the safety or welfare of the public.

“So basically criminal law are rules that prevents people from doing naughty things?” Mandy asked.

“Yep ;) ,” Jamie replied.

“For example… the fact that he stole your heart Mandy,” Joe commented, “which would be considered theft.”

Unlike civil law which is enforced by parties, criminal law is enforced by the state. This means, whereas civil law on contracts, for example, are enforced by one party on to another; criminal law is enforced by society as a whole, on to a party.

As a result, in Commonwealth countries, criminal cases are notated R v. Whoever. The letter “R” stands for “Regina”, or The Queen.

“So in the case of Jamie stealing your heart Mandy,” Joe started, “it would be R v. Jamie”

Although most criminal actions are taken in local courts, there is a United Nations’ International Criminal Court which helps to execute cases for crimes against humanity.

Criminology

Criminology is the study of why people commit crime.

As a sociological field however, there are many criminological theories, although they can generally be classified within certain schools of thought, including the classical school and positivist school.

The Classical school, based on utilitarian philosophy, that since people are free to act as they wish, deterrence should be provided to assist a person weigh up costs and benefits of their actions, by making the punishment certain, swift, and proportional to the severity of the crime.

“So people in the Classical school of thought think criminal law exists, or should exist, to send a strong message to outlaws, ‘don’t do it, or you’ll be busted’?” Mandy asked.

“That’s right,” Jamie responded, “by making punishment the same every time such crime was committed, only altered in length by the seriousness of the crime.”

The weakness of the school is ignoring irrationality and unconsciousness.

“So this means some criminals are too stupid, or just don’t know?” Mandy asked.

“Yep,” Jamie answered, “that’s right.”

The positivist school understands crime as being caused by internal or external factors outside of the individual’s control. Within positivism is biological, psychological and social positivism.

“So this is a more empathetic approach?” Mandy asks, “where theorists say crime occurs not because a person necessarily wants to do crime, but are forced do by other factors?”

“Yeah,” Jamie answered, “that’s the idea.”

Biological positivism, also known as the Italian school, was initiated by Cesare Lombroso, an Italian prison doctor, who looked at physiological traits of criminals, noticing similarities of cheek bones, hairline, cleft palate, which tended to indicate criminal tendencies.

“So this school actually thought the fact people commit crimes is related to the way they are born?” Mandy asked.

“That’s right, so relating to their biology.”

Psychological positivism, believe the psychological factors in upbringing, make a person more likely to commit criminal acts.

“So rather than believing the biological (or how you are born), psychological positivists think that it relates to psychological (or experiences they’ve had)?” Mandy asked.

“Yep, so relating to their psychology.”

Sociological positivism, believe social factors such as poverty, age, gender, alcohol consumption, population density, subculture, low levels of education, predispose people to crime.

“So this goes one step further,” Mandy commented, “and not only experience, but also looks at surroundings totally out of that person’s control and may relate to large numbers within that social group.”

“You got it Mandy,” said Jamie.

Purpose of criminal law

Depending on the consequence, whether it be capital punishment (the death penalty), corporal punishment (or physical whipping or caning), or incarceration (in prison for a certain length of time), or other sanctions (parole or fines), the purposes of criminal law are retribution, deterrence, incapacitation, rehabilitation and restitution.

“Let’s make an example up for this,” Jamie commented.

“Okay,” Mandy said, “let’s pretend we live in a pretend society where Chinese boys are forbidden from holding hands with white girls; and if found to have broken the law, both will go to jail for 10 years.”

“Forbidden love!”Jamie remarked.

Retribution is the idea that since criminals have unfairly detrimented others, criminal law makes the lives of criminals unpleasant to get them back. This is based on the “an eye for an eye” principle.

“So in our example?” Mandy asked.

“If the incident occurred in a society where, as a lower citizen, holding your hand would degrade your status; the idea of jailing me would be to help you get back at me, in a legal way,”Jamie responded.

Deterrence is aimed at imposing a sufficient penalty to discourage the offender from their criminal behavior again, and by showing society that if they commit such offence they will be imposed similar penalties.

“In our example, this would be the fact that jailing me for ten years, would make me not ever want to hold your hand ever again,” Jamie responded.

“:( awwwhhh,” Mandy responded.

Incapacitation is aimed at keeping criminals away from society, so that the public is protected, either for a time whilst the criminal is put away, or death penalty or banishment which makes this permanent.

“In this example, it is about keeping me away from society, so I won’t hold any other white girls’ hands and also hurt their reputation,” Jamie said.

Rehabilitation is aimed at transforming the offender into a valuable member of society, by giving the criminal some time to think about their actions so they do not commit the same wrong again.

“In this example, it would be the idea of jailing me for 10 years, would give me some time to think about my actions, so I won’t commit the same wrong again,” commented Jamie.

Restitution, which is aimed at repairing any hurt inflicted on the victim by the offender, for example the repaying of an improperly acquired amount.

“So here, it may involve doing a public apology, such as a statement to the effect that I haven’t behaved with you in an indecent manner, so help me God,” said Jamie.

Elements of criminal law

As criminal law is generally codified, meaning it is written out, the way it operates will depend on the text.

Generally however, criminal law is marked by the elements of actus rea and/or mens rea.

Actus rea (Latin for “Guilty act”) is the physical element, by either:

  • An action, for example punching me punching Mandy
  • Threat of action, for example threatening to punch
  • Sometimes (if such duty exists), an omission to act, for example failing to protect Mandy from the badies who try to hurt her

Mens rea (Latin for “Guilty mind”) is the mental element, meaning there was the intention to commit the wrongful act. This can occur by recklessness, which is where the person doesn’t really care to make this consideration.

Mens rea is important, for example, in distinguishing murder (where there was an intent to cause death) and manslaughter (where there was no intent to cause death). In both situations however, the actus rea of killing another person was satisfied.

Strict liability is where mens rea doesn’t matter. This means, intent to commit the crime doesn’t matter. For example, if you get a speeding ticket, even though you may not have intended to speed, because you did speed, you are just as culpable.

Types of crimes

There are many different types of crimes depending on the jurisdiction, but they can be classed into various categories, including fatal offences, personal offences, property offences, and participatory offences.

Fatal offences, which is unlawful killing (i.e. murder or manslaughter)

“For example, the assassination of John F. Kennedy?” Mandy asked.

“Yep,” Jamie replied, “that’s an example of murder.”

Personal offences, which protect the physical integrity of the body, which includes unlawful touching (although doesn’t include everyday knocks and jolts), and rape.

“How does this differ from killing?” Mandy asked.

“The recipient doesn’t need to be dead, or even hurt, so long as it invades personal space,”Jamie said, “for example, if I held your hand without your permission, or tried to take advantage of you.”

Property offences, which includes trespassing (being on a land without permission of the owner), theft (stealing), robbery (theft by force), fraud (false representation to reach a gain), embezzlement (misusing money given for one purpose to use for another non-authorized purpose), and conversion (exerting unauthorized use/control of someone else’s property)

“So this is where you’ve stolen something or unlawfully used something without permission,”Jamie said.

“For example burning movies?” Mandy asked.

“Yes, that would be an infringement of intellectual property offences,” Jamie said, “but nevertheless property – which is why they have the CIA warnings for unlawful burning.”

Participatory offences, which is association with a criminal venture, for example accomplice (helping a criminal), conspiracy (working together with others to commit a crime), attempt (trying to commit a crime, whether the crime was committed or not)

“So this is where you may not have even participated in doing the criminal act,” Jamie said, “but were involved with it in some way.”

Defense in criminal law

There are also defenses in criminal law, which include insanity, automatism, intoxication, mistake, necessity, lawful capacity, self defense, and duress.

Insanity is where the wrongdoer has a mental disorder.

“Kind of like the crazy frog,”Mandy commented.

Commonly, this is where the wrongdoer doesn’t even know what they are doing is wrong, which usually results in treatment at a mental institution instead of going to jail.

Automatism is where the muscles act without any control of the mind or conciousness.

“I got a funny example for this one,” Mandy said.

“Tell,” Jamie replied.

“For example, if my doctor gave me a patellar reflex test, and as a result of hammering my patella tendon, I smack him in the head – I could get away with it :) ,” Mandy said.

“Ohhhkayyyy…” Jamie replied, “yes that wouldn’t be considered battery.”

Intoxication, which is where a person is intoxicated by alcohol (i.e. drunk) or drugs. However, the law may be just as harsh with voluntary intoxication, for example intentionally attempting to get drunk; and distinguish this from involuntary intoxication, which is where your drink was perhaps unforeseeably spiked with alcohol or drugs.

“So for example, if your drink got spiked, and you started hugging me inappropriately and stuff,” Mandy exampled, “this could be a defense against a criminal act.”

Mistake of fact, which is where there is a genuine mistake of fact. For example a verbal assault on a police officer was justified, on belief the officer was a criminal who was unlawfully detaining them.

Necessity, which is where the criminal act is justified to prevent a foreseeably greater harm, if that lesser harm was not committed. For example, to trespass, in order to put out a fire on a property.

Lawful capacity, for example a police officer who has been permitted by law to enter into a sting operation to deal drugs. Civilians can also be provided this role, for example a police officer who may yell “stop that man!”, such that the civilian is allowed to catch and detain the person, and not obstruct assault or personal injury law.

Self defense, taking reasonable action to protect self. Of course, the defensive force must be proportionate to the threat.

“I heard a story where a person who stole from a man’s house, was responded with that man taking out a chainsaw to cut him up.”

“That is a clear example of disproportionate defense to threat,” Jamie replied.

Duress, where one is forced into an unlawful act. This is may involve threats of death or serious injury.

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