NCJ Number
52253
Journal
CRIMINAL LAW QUATERLY Volume: 17 Dated: (1974-75) Pages: 355-390
Date Published
1974
Length
36 pages
Annotation
THE VALUE OF THE CONCEPT OF SUBJECTIVE RECKLESSNESS IN CRIMINAL LAW IS QUESTIONED, WITH REFERENCE TO BRITISH AND CANADIAN CASE LAW REGARDING THE MENTAL ELEMENT IN CRIME.
Abstract
UNDER A SUBJECTIVE CONCEPT OF MENS REA, A PERSON'S MORAL BLAMEWORTHINESS IS JUDGED ON THE BASIS OF WHAT THAT PERSON HAD IN MIND (OR WILL) AT THE TIME OF THE BEHAVIOR IN QUESTION, NOT ON THE BASIS OF WHAT THE REASONABLE (OR NORMAL OR AVERAGE) PERSON, OR THE TRIER OF FACT, WOULD HAVE HAD IN MIND. MORALLY GUILTY STATES OF MIND INCLUDE INTENTION AND RECKLESSNESS, THE LATTER REFERRING TO THE DELIBERATE ACCEPTANCE OF FORESEEN RISK. BRITISH LAW HAS MOVED TOWARD A SUBJECTIVE MENS REA SCHEME, BUT THERE ARE PROBLEMS WITH THIS SCHEME, PARTICULARLY WITH REGARD TO THE CONCEPT OF SUBJECTIVE RECKLESSNESS. BEHAVIOR THAT IS SUBJECTIVELY RECKLESS (THAT IN WHICH THE AGENT FORESAW THE RISK AND DECIDED DELIBERATELY TO TAKE THE RISK) IS ALSO OBJECTIVELY RECKLESS (SUCH THAT A REASONABLE PERSON WOULD HAVE REALIZED THE RISK AND AVOIDED THE BEHAVIOR). BUT THE CONVERSE DOES NOT APPLY. THERE ARE TWO PRINCIPAL DIFFICULTIES IN THE CONCEPT OF SUBJECTIVE RECKLESSNESS: (1) IT REQUIRES A JURY TO DECIDE THAT A CERTAIN EVENT OR ACT (FORESIGHT AND ACCEPTANCE OF RISK) OCCURRED IN THE AGENT'S MIND AT A PARTICULAR TIME; AND (2) IT ASSUMES THAT THE DEGREE OF MORAL BLAMEWORTHINESS PRESENT IN SITUATIONS OF OBJECTIVE RECKLESSNESS IS RADICALLY DIFFERENT FROM THAT PRESENT IN SITUATIONS OF SUBJECTIVE RECKLESSNESS, THE IMPLICATION BEING THAT OBJECTIVELY RECKLESS BEHAVIOR IS COMPARABLE TO NEGLIGENCE AND THAT, IN THE ABSENCE OF FORESIGHT, RECKLESS BEHAVIOR IS NOT TRULY CRIMINAL AND, IF IT IS TO BE PUNISHED AT ALL, IT IS PUNISHABLE ONLY AS AN OFFENSE OF NEGLIGENCE. THE SUBJECTIVE RECKLESSNESS FORMULATION HAS INTRODUCED SEVERAL PROBLEMS: IT MAKES UNREASONABLE DEMANDS ON JURIES; IT PLACES EXCESSIVE EMPHASIS ON PRECISION IN THE JUDGE'S CHARGE, WHEN THE PRECISE CHOICE OF WORDS IS NOT LIKELY TO AFFECT THE JURY'S VERDICT; AND IT FAILS TO REFLECT ORDINARY MORAL JUDGMENTS. THE FORMULATION APPEARS TO REPRESENT A DEDUCTION FROM CERTAIN PROPOSITIONS (PERHAPS DOGMAS) ABOUT MENS REA, NOT A CONSIDERATION OF THE WAY PEOPLE ACTUALLY BEHAVE AND JUDGE OTHER PEOPLE'S BEHAVIOR. TWO THINGS ARE NEEDED: (1) RECOGNITION THAT JURIES SHOULD NOT BE REQUIRED TO DRAW CONCLUSIONS ABOUT WHAT HAS HAPPENED IN THE ACCUSED'S MIND AT ANY GIVEN TIME, AND (2) RECONSIDERATION OF SITUATIONS IN WHICH RECKLESSNESS IS IMPORTANT, WITH A VIEW TO THE POSSIBLE REFORMULATION OF SPECIFIC CRIMES. THE DISCUSSION CLOSES WITH COMMENTS ON THE DISTINCTION BETWEEN MURDER AND MANSLAUGHTER, WITH REFERENCE TO A SCOTTISH HIGH COURT'S DESCRIPTION OF MURDER AS JUST AN AGGRAVATED FORM OF ASSAULT. (LKM)