Affect and criminal responsibility

Abstract

In this article the author deals with an issue of relationship between the affect and criminal responsibility. In order to provide a multi-angle approach to analysis of this issue the author resorted to multidisciplinary - criminal law and psychiatric-psychological approach. Although the topic covered by this article is significant and complex, it appears to be of virtually no interest in the literature. For that reason the author's endeavor to research this topic should not go unmentioned. In the first part of the article the author tried to provide answers to some preliminary questions without which it would be impossible to understand the relationship between the affect and criminal responsibility. Those are the following questions: what are affects, what is their nature and intensity, how long they last and how they influence psychological functions of a person acting in affect? Central part of the article is dedicated to examining the importance of the affect as a phenomenon in criminal law dogma and in judicial rulings, as well as its effect on criminal responsibility. The author finds that acting in affect may be considered as a mitigating circumstance in the sentencing, but can also be a basis for mitigation of the sentence or even suspension of the sentence, as part of some general criminal law norms. Also, for certain offenses it may be considered as a favorable condition that renders that offence to be less grave. Finally, the affect may be considered as a psychological basis diminished, or even lack of, mental capacity. The last above mentioned issue receives special attention of the author, and claims that only the affect that is 'of extreme proportions' may lead to mental incapacity. Such affect is the one that 'demolishes restrains and removes reasonable and target-oriented actions'. In further analysis the author proposes criteria and methodology for assessment of person's sanity in criminal law and criminal procedure. Further, the author claims that acting in affect is rarely sudden and unexpected but rather it is a consequence of permanent conflict situation. The author puts forward his arguments for such claims. At the end, the author deals with the issue of 'quilt for one's own actions taken in affect', within the limits of criminal responsibility. He rejects opinions of authors that support the possibility of establishing a special type of guilt for 'explosion of affect' that lead to an offense committed in the state of insanity, provided that such explosion could have, supposedly, been foreseen and prevented. At the end, the author concludes that psychiatric assessment of defendant that committed offences in affect is one of the most difficult and riskiest tasks put before the court-psychiatrist.