Alcohol consumption and the liability of offenders in the German criminal system

Abstract

The recent Canadian criminal case of Daviault v. R. with its subsequent decision handed down by the Supreme Court has sparked a substantial discussion around the issue of liability of offenders in a state of intoxication at the time of offense. The critical question involves whether offenders-finding themselves in a state of altered consciousness due to the intake and effects of psychoactive substances-can be held legally responsible for the act in harmony with the prevalent legal principles around guilt. This legal dilemma becomes prominent in a wide variety of cases of criminal violence, but it assumes a particularly crucial and complex significance in the context of sexual assault cases. With regard to the correlation of alcohol use and violence in general, it is argued from certain perspectives that intoxication not only alters the state of consciousness of the potential offender but that it might even substantially influence or contribute to the perpetrator's motivation to commit the criminal act (see Abel 1988, Kalant 1995, Pernanen 1991). However, with respect to the particular juncture between alcohol and sexual assault offenses-in the largest number of cases committed by male offenders-it is pointed out by Parrot and Beckhofer (Behrends 1993) that alcohol does not so much affect the state of sexual arousal of male subjects but rather alters behavioral readiness and expectations. In addition, it leads to the misinterpretation of signals coming from the intoxicated individual's environment, and there is evidence that it lowers the threshold of violent behavior against females (ibid.). In acknowledging this nexus, jurisprudence is presented with a dilemma in regard to intoxicated sexual offenders. The Canadian criminal system requires an offender to be conscious of the act committed in order to be held legally responsible, but it does not include any legal-technical devices to pragmatically deal with offenders who have brought themselves into a state of intoxication; therefore the Supreme Court's decision in regard to Daviault had to allow that the state of intoxication could be used as a by the defendant. The subsequent political-legal moves, however, did not fundamentally solve the legal dilemma around the liability of intoxicated offenders, but simply chose to outlaw the possibility of the drunkenness defense in order to prevent the recurrence of such an unpopular verdict. Other legal systems have dealt with the nexus of legal liability and altered consciousness, and have found different solutions. The German criminal system-partly through the evolution of case law, partly through the enactment of specific legal devices-has developed a set of legal mechanisms to deal with intoxicated offenders, which mostly results in a legally sound conviction of offenders and in punishments similar to those applied to the same criminal act committed without an alteration of consciousness. This tool-set in particular also applies to sexual offenders, and it seems to work rather effectively and uncontroversially, as a modest inquiry to legal experts in preparing this paper has confirmed. The framework for legal liability of criminal offenders The German criminal system builds on the general principle of liability for criminal offenders. This basic assumption means that every offender who is to be held responsible for the commission of a criminal act and who is subsequently to be processed by the criminal justice system (standing trial, being convicted and sentenced, etc.) is a priori considered liable for the act and the motivation behind his/her behavior. In other words, it is assumed that the offender had the ability to more or less intend and understand the consequences of the act committed. Criminal behavior therefore requires the notion of an act (actus reus) as well as a certain form of consciousness in relation to the act (mens rea). However, an offender who has committed a certain form of behavior that is considered a criminal offense, but who cannot be judged liable for the behavior due to particular external or internal reasons, cannot subsequently be held criminally responsible; a person who is not legally liable for an act can be neither convicted nor sentenced for this particular offense. …