INTOXICATION AND CRIME - A COMPARATIVE APPROACH

• NCJ Number: 69035
• Journal: International and Comparative Law Quarterly Volume: 27 Dated: PART 2 (APRIL 1978) Pages: 378-412
• Author(s): F DALY
• Date Published: 1978
• Length: 35 pages
• Publication Format: Article
• Language: English
• Country: United Kingdom

Annotation

THE ARTICLE COMPARES ENGLAND'S BUTLER COMMITTEE REPORT, THE MAJEWSKI DECISION, AND THE 330ASTGB PROVISION OF THE GERMAN CRIMINAL CODE, WHICH ALL DEAL WITH THE SUBJECT OF INTOXICATION AND CRIMINAL RESPONSIBILITY.

Abstract

THE PROBLEMS ARISING IN CRIMINAL LAW INVOLVING THE RELATIONSHIP BETWEEN INTOXICATION AND CRIME HAVE BECOME MORE COMPLEX AS SOCIETY HAS GROWN MORE SOPHISTICATED. THE GERMAN CRIMINAL CODE, IN PROVISION 330ASTGB, ESTABLISHES A SEPARATE OFFENSE FOR PERSONS WHO DELIBERATELY OR CARELESSLY GET THEMSELVES INTO A STATE OF ACUTE INTOXICATION AND IN THAT STATE, COMMIT AN UNLAWFUL ACT FOR WHICH THEY ARE INCAPABLE OF LEGAL GUILT DUE TO DIMINISHED MENTAL CAPACITY. SIMILARLY, THE BUTLER COMMITTEE'S REPORT RECOMMENDS ESTABLISHING A SEPARATE OFFENSE WHEN A VOLUNTARILY INTOXICATED PERSON COMMITS AN ACT OR MAKES AN OMISSION THAT WOULD AMOUNT TO A DANGEROUS OFFENSE IF IT WERE DONE OR MADE WITH THE REQUISITE STATE OF MIND FOR SUCH AN OFFENSE. IN THE MAJEWSKI DECISION, THE HOUSE OF LORDS RECOGNIZED THAT INTOXICATION IS AN INTRINSIC PART OF A CRIME AND THAT THE OTHER PART IS THE CRIMINAL ACT ITSELF. THE DECISION IS ACTUALLY SIMILAR TO BOTH THE BUTLER REPORT AND THE GERMAN 330ASTGB IN ITS SEPARATION OF THE TWO PARTS OF A CRIME WHEN COMMITTED UNDER INTOXICATION. A CASE OF RAPE MAY SERVE AS A BASIS FOR CONSIDERING SOME OF THE LEGAL DIFFICULTIES. IT IS COMMITTED WHILE THE OFFENDER IS INTOXICATED, AND HE DOES NOT HAVE ANY MEMORY OR KNOWLEDGE OF IT AFTER THE FACT. LEGAL DIFFICULTIES ARISE WHEN THE CASE IS CONSIDERED FROM THE STANDPOINTS OF 330ASTGB, THE BUTLER RECOMMENDATION, AND THE MAJEWSKI DECISION. THE PROBLEMS ARE FOUND IN THE DETERMINATION OF THE BASIS OF THE OFFENSE, THE ESTABLISHMENT OF THE INTOXICATION ACT, THE ESTABLISHMENT OF THE INTERNAL ACT (RAPE), AND THE PROCEDURE, EVIDENCE, AND SENTENCING OF THE OFFENSE. THE COMPARISON ACCENTUATES THE CONFLICT BETWEEN THE DESIRE TO MAKE A MAN FULLY LIABLE AND PUNISHABLE WITHIN THE CRIMINAL LAW FOR HIS ACTS, AND THE RECOGNITION THAT AT THE TIME OF COMMITTING THOSE ACTS, HIS MENTAL STATE WAS SUCH THAT HE COULD CLAIM HE ACTED WITHOUT FULL CRIMINAL RESPONSIBILITY. A TOTAL OF 167 FOOTNOTES ARE INCLUDED.