Mental Element Research Articles

Rape, The Mental Element and Consistency in the Codes

This article explores the mental element in rape in Australia. It briefly examines the position in the common law jurisdictions, which require mens rea, and the code jurisdictions, which do not. Although the Northern Territory (NT) is a code jurisdiction the approach to the offence of sexual intercourse without consent fits more appropriately with the common law states since the decision in DPP (NT) v WJI (2004) 219 CLR 43. This article examines the reasons for the High Court favouring an approach similar to common law in the NT. It will also explore whether the decision in DPP (NT) v WJI (2004) 219 CLR 43 might affect the law in the other state codes and whether there should be any change in the code approach to this offence.

Crying Receipts: Time, Empathy, and Institutional Practice

In this article, we focus on the activities done by the recipients of crying. In the analysis, we work with a corpus of calls from a child protection helpline in which the caller shows features of crying (14 calls, or about 10% of the total). Our focus is on two kinds of crying receipts made by child protection officers (CPOs) that are rare in noncrying calls but recurrent in crying calls: take-your-times (TYTs) and empathic receipts (ERs). TYTs are used in environments in which the caller displays an attempt to but failure to articulate talk. This can be shown by inappropriate silence, wet sniffs, sobs, and turn constructional units that are either incomplete or disrupted by sobs, sniffs, or whispering. TYTs offer a license for the late delivery of talk and are affiliative. ERs can replace TYTs but are more common in environments in which callers are unresponsive to CPO actions such as advice giving. ERs have two elements—a formulation of the crying party's mental state and some sort of marker of the contingency of the mental state formulations. The mental state element is built from local features of the caller's talk (displays and metaformulations of upset), and issues of accuracy are managed through the epistemic contingency maker (most of ten treating the formulation as based on hearing). We discuss broader implications of this work for conceptions of empathy. This research was supported by a fellowship from the UK Leverhulme Trust granted to Alexa Hepburn. We thank audience members for helpful feedback at seminars in the University of Surrey, March 2004; Lund University, June 2004; University of Rome, La Sapienza, July 2004; University of York, November 2004; University of Bath, March 2005; Jyvaskyla Yliopisto, March 2005; and the University of Northampton, October 2005. We are particularly grateful to the callers and child protection officers at the National Society for the Prevention of Cruelty to Children for allowing us access to their calls. We have benefitted immensely from a series of discussions with Jess Harris about her research on crying in medical settings and from comments on an earlier draft by Derek Edwards.

Actus non facit reum, nisi mens sit rea: An Investigation into the Treatment of Mens Rea in the Quest to Hold Individuals Accountable for Genocide

This paper discusses a research investigation into the treatment of mens rea in the quest to hold individuals accountable for genocide. This paper focuses on doctrinal controversies and examines how genocide is and has been addressed by modern tribunals, with special emphasis on the subjective mens rea (mental element) required for genocide.

Legal Causality and Criminal Intent in the Legal Discourse

In this article I analyse linguistic means employed to reconstruct causality in court. Identifying the causal relations that induced the occurrence in reality is particularly important when the mental element of the offence is considered proving criminal intent is showing existence of a causal relation between an intention and a legally prohibited act. I show that the legal significance of an action depends on the time of the action relative to other events. I will show that in the legal-criminal discourse simultaneity implies causality. In particular, if discussing a concrete occurrence, an event is proved to be simultaneous or almost simultaneous with an action – then causation between the action and the event is commonly implied if the event seems to the court as a reasonable motive for the particular action. I exemplify how the institutional speakers use time conjunctions indicating actions that happen simultaneously or almost simultaneously in order to prove existence of a causal relation, and how they present the simultaneity as incidental in order to deny existence of such a relation.

A New Defense for Self-Defense

Abstract Private defense, like self-defense, has been virtually undisputed both in the past and present and even taken for granted, and perhaps particularly for this reason, sufficient attention has not always been given to the rationale underlying private defense. As a result, the legal arrangements set for private defense in the different legal systems are deficient, inconsistent, and, at times, replete with internal contradictions. This article seeks to propose a sound rationale for the concept of private defense. It begins by attempting to clearly and precisely delineate the scope of the defense and weed out cases that are occasionally (and, I maintain, mistakenly) included in the framework of its scope by means of two general and imperative distinctions: between justification and excuse and between the definitive components of offenses and those of defenses. With regard to the first distinction, I consider the validity of its application and its possible implications for private defense. Since the validity of the second distinction is undisputed as an empirical fact (at least formally) in all modern penal codes, the question raised is whether there is a significant difference between the definition of offenses and the definition of defenses. The answer to this question is relevant to a number of issues, and of particular relevance to private defense are its implications for the application of the principle of legality and with regard to the mental element that should be required of the actor in such situations. Next I embark on a discussion of the various theories competing for predominance as elucidations of private defense. These theories and this discussion then serve as the background and foundation for the construction of the article's proposed rationale for private defense. The novelty of this rationale is in its integrative approach, melding a number of the proposed justifications for self-defense, rather than taking the traditional path of espousing one all-excluding rationale.

'Unless Otherwise Provided':: Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law

For the first time in international criminal law, Article 30 of the International Criminal Court (ICC) Statute (ICCSt.) codifies a mental element as a general requirement for individual criminal responsibility. Moreover, Article 30 seeks to set a uniform standard - intent and knowledge - for the mental element, applicable to all crimes under international criminal law. The authors show that Article 30 establishes subjective conditions of liability which depart significantly from the ones that can be found in other provisions of the ICC Statute, the Elements of Crimes and customary international law. The authors argue that the `unless otherwise provided` clause included in Article 30(1) ICCSt. plays a vital role for a consistent and coherent application of international criminal law. They conclude that Article 30 ICCSt. should be interpreted as a default rule that is applied only in the few cases where there are no specific rules on the mental element in either the other provisions of the ICC Statute, the Elements of Crimes or in customary international law.

Motivation for offending and personality

Purpose. The main aim of the study was to examine the relationship between motivation for offending and personality.Method. A specially constructed Offending Motivation Questionnaire (OMQ) was developed along the lines of Farrington's (1986, 1993) theoretical framework. The OMQ, the Mak Self‐Reported Delinquency Scale, the Gudjonsson Compliance Scale (GCS), the Gough Socialisation Scale, the Rosenberg Self‐Esteem Scale, and the Gudjonsson Blame Attribution Inventory (BAI‐R) were administered to two groups of students: college students and university students.Results. Factor analysis of the OMQ revealed four motivational factors for offending (Compliance, Provocation, Financial, Excitement) and one further factor associated with the failure to appreciate the consequences of the criminal act. As predicted, the GCS correlated significantly with a compliance motive (i.e. being coerced, manipulated, or tricked into crime by a peer, or eagerness to please a peer), whereas the remaining four factors were associated with a low score on the Gough Socialisation Scale. External and Mental Element attributions were mainly found to be associated with provocation and consequences factors.Conclusions. The findings support the view that there is a relationship between the motivation for offending, failure to appreciate the consequences of one's actions and personality. Further research should focus on studying this relationship among criminal populations.

Lessons About Sleepiness and Driving from the Selby Rail Disaster Case: R v Gary Neil Hart

In April 2003, near the town of Selby in North Yorkshire, England, a motor vehicle went off the road to cause a train collision, killing 10 and injuring more than 70 people. The driver of the vehicle, Gary Neil Hart, had allegedly fallen asleep while driving, and was charged and subsequently convicted of causing death by dangerous driving. Evidence from an expert witness was led by the prosecution to establish that Hart had in fact fallen asleep, and that prior to falling asleep, he knew (or ought to have known) that he was at risk of falling asleep but nevertheless continued to drive. The issue of whether and to what extent individuals are aware that they are about to fall asleep has significant implications for criminal prosecutions. Generally, the definition of a criminal offense includes a mental element such as intent or knowledge. Therefore, it is imperative that issues such as whether in every individual there is forewarning of sleep and the degree to which individuals are able to self-assess their ability to continue driving under conditions of extreme sleepiness must be resolved. Sleepiness is now regarded as the largest identifiable and preventable cause of accidents in all modes of transportation. Litigation for such accidents is likely to increase, and therefore it is of great importance that further research be undertaken to examine the process of falling asleep, especially the subjective experiences immediately preceding sleep.

Welfare rights advice in primary care: prevalence, processes and specialist provision.

Despite persistent poverty-related health inequalities, few sustained responses have been developed in primary care. Welfare rights provision has been proposed as one potential pathway to addressing health inequalities. This study was set up to address the prevalence of welfare rights issues in general practice, and the practitioner response to unmet need. A postal questionnaire was sent to practitioners in GP surgeries of an inner city health authority with high levels of deprivation. By means of a 'most recent case audit', data on welfare advice needs were collected. Practices with in-house welfare rights provision were compared with those surgeries with no such provision. Questionnaires were returned by 153 practitioners, describing their most recent case with a welfare rights need (mean 10.41 days ago). Of the respondents, 70.6% felt that there was a mental health element to this consultation, 49.8% of problems were described as urgent, and 65.8% of patients requested information or guidance. Those practitioners with specialist advisers in the surgery (n = 81) were significantly more likely to find referring patients to advisers easy, that quality of advice for patients was good, that welfare providers enhanced their ability to practice effectively and that such provision improves the health and well-being of patients. In those surgeries without provision (n = 72), patients were more likely to approach their practitioner for advice. GPs were more likely than nurses and other practising staff to see a case with welfare rights needs. Practitioners were more likely to raise the welfare issues if they had specialist advice in the surgery. A large amount of practitioner consultation time is spent on welfare rights-related issues. Although practitioners are skilled in detecting need, and their practice is enhanced by specialist support, expansion is needed to provide the advice which cannot be met by clinical consultation.

DISHONEST ASSISTANCE: GUILTY CONDUCT OR A GUILTY MIND?

Chancery lawyers have for many years awaited a definitive House of Lords ruling on the mental element required to make strangers to a trust liable for knowing or dishonest assistance in a breach of trust, and for knowing receipt of trust property. The appeal in Twinsectra Ltd. v. Yardley [2002] UKHL 12, [2002] 2 All E.R. 377 provided the opportunity for resolution of the issue in the former case but not the latter; the degree of knowledge required for a knowing receipt claim remains for final determination on another occasion.

The relationship between attribution of blame for a violent act and EPQ-R sub-scales in male offenders with mental disorder

The aim of this study was to investigate the relationship between personality, depression and attribution of blame for a violent act. Data was collected from 65 male inpatients from two Medium Secure Units. All participants had committed an act of a violent nature. Participants were administered the Gudjonsson Blame Attribution Inventory (GBAI), the Eysenck Personality Questionnaire-Revised (EPQ-R) and the Beck Depression Inventory-II (BDI-II). Results were generally supportive of previous research findings. Guilt attributions were negatively correlated with psychoticism scores, external attributions were positively correlated with psychoticism scores and mental element attributions were positively correlated with neuroticism scores, on the EPQ-R. A trend was further observed between higher guilt attributions and increased depression scores.

Reliance on a Lawyer's Mistaken Advice - Should it be an Excuse from Criminal Liability?

The presumption that every person knows the law is no longer an absolute presumption of law. Over the years, many legal systems have drifted away from the strict rule, based on that presumption, that mistake of the criminal law is no excuse. Nevertheless, it continues to be the case that mistake of the criminal law (including ignorance of the law) requires special legal arrangements. The excuse granted because of mistake of the criminal law is more limited than that granted because of mistake of fact. In this article I propose to examine whether, current approaches to the problem of mistake of law, mean that a person who relied on the mistaken advice of a lawyer can and should be excused from criminal liability. The answer to that question requires that we re-examine the traditional rationales for the rule that mistake of law is no excuse (Part I). The dilemmas raised by reliance on a lawyer's mistaken advice, is elaborated in Part II, where it becomes clear that the traditional rationales cannot entirely be abandoned. My conclusion is that no excuse should be granted for relying on a lawyer's mistaken advice. Whether that conclusion can be reconciled with the requirement of culpability is discussed in Part III. In this context, those cases in which reliance on a lawyer's mistaken advice should be recognized due to a negation of the special mental element of the offense are identified. In Part IV, I argue that the conclusion that no excuse be granted for relying on a lawyer's mistaken advice does not require that we prefer the provisions that grant an excuse only where the mistake of law was due to a reliance on an official interpretation. The advantage of broader provisions granting an excuse for mistake of law that was reasonably unavoidable is that it applies in situations in which there is no reliance.

The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences

The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences

Proving the Criminal Origin of Property in Money‐Laundering Prosecutions

A successful prosecution for a criminal offence requires a prosecuting authority to prove beyond a reasonable doubt that a defendant possessed the requisite mens rea, or mental state, and that at that time he also committed the actus reus of the offence, that is to say those elements of the crime apart from the mental element. One of the most common features of the actus reus of money‐laundering offences across different legal jurisdictions is that the prosecution usually has to prove, inter alia, that the property which was the subject of the transaction was, as a matter of fact, the proceeds of crime. Some variations will however occur, in that in certain jurisdictions there may be a requirement to prove that the property is the proceeds of a particular predicate offence; in others it may be sufficient to prove that the property is derived from any form of criminal conduct. This paper examines the ways in which law enforcement authorities have attempted to prove this clement of a laundering offence, and concludes by making some suggestions for alleviating the difficulties inherent in doing so. Given that there have been relatively few convictions for money laundering in the UK, many of the examples are drawn from other jurisdictions, some of which have much greater experience of such prosecutions. Occasional examples are also drawn from civil forfeiture cases. While the standard of proof in such cases is that applicable in civil proceedings rather than the criminal standard applicable in money‐laundering prosecutions, such cases may nevertheless be useful so as to see the type of evidence adduced before the courts in order to prove that property is the proceeds of crime.

The Comprehensive Environmental Response, Compensation, and Liability Act: The Correct Paradigm of Strict Liability and the Problem of Individual Causation

I. INTRODUCTION The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, (CERCLA)(1) does not expressly impose liability. Rather, CERCLA provides generally in definitional section that the terms `liable' or `liability' under this subchapter shall be construed to be standard of which obtains under section 1321 of Title 33,(2) which is Section 311 of Clean Water Act.(3) As of time of CERCLA's enactment in 1980, federal courts had construed Section 311 of Clean Water Act to impose strict liability.(4) Therefore, numerous federal courts have concluded that CERCLA also imposes strict liability on four statutory categories of responsible persons for costs and damages resulting from release or threatened release of a hazardous substance from a vessel or facility into environment.(5) Courts and commentators, however, have failed to clarify that concept of strict liability has different meanings in different contexts, and it is necessary to take into account correct paradigm(6) of to properly interpret CERCLA. The term strict liability can refer either to for criminal offenses and civil public welfare offenses, or to in tort for or abnormally dangerous activities.(7) In context of for criminal offenses and civil public welfare offenses, definition of is limited to concept of mens rea, or mental element of a crime or infraction.(8) Under this paradigm, applies to commission of a prohibited act, regardless of mental state of defendant.(9) Strict in tort for highly hazardous activities is similar to for criminal and public welfare offense because proof of a defendant's mental state, such as intent or negligence, is not required for liability. However, tort concept of for ultrahazardous activity also encompasses important concepts of that make it a significantly different conceptual paradigm.(10) Most importantly, inquiry in context of for ultrahazardous activity focuses on harm that flows from an instrumentality, as opposed to harm from conduct of a specific individual defendant.(11) A defendant's is based on defendant's relationship to instrumentality, such as being owner, operator or user.(12) In addition, a plaintiff establishing tort for ultrahazardous activity may recover damages for all harm that is caused by dangerous instrumentality, as long as it is of type that made instrumentality ultrahazardous in first place.(13) A proximate causation analysis, to extent applicable at all, does not include a requirement that harm was foreseeable based on a particular defendant's vantage point, as in negligence law.(14) Strict for ultrahazardous activity also has a unique approach regarding intervening causes such as third parties and acts of God.(15) Litigants have, on occasion, advanced concept of as a basis to explain nature of CERCLA causation, but some courts and commentators have mistakenly responded that only relates to mens rea and is irrelevant to causation.(16) These courts and commentators have failed to clarify that CERCLA's structure is derived in large measure from tort paradigm of for ultrahazardous activity, not from criminal/civil public welfare offense paradigm, and have incorrectly conceptualized CERCLA in terms of activity of an individual defendant.(17) Thus, rather than viewing basis of as a relationship between defendant and an instrumentality that causes harm (the CERCLA vessel or facility), some courts have required a showing that an individual defendant's acts caused harm in form of cleanup costs or natural resource damages. …

The Mental Element in Murder: Resolved at Last?

The Mental Element in Murder: Resolved at Last?

Cognitive distortions and blame attribution in sex offenders against adults and children

Objective: Sexual offenders tend to hold attitudes and beliefs which minimize and justify their offending behavior. It was hypothesized that distorted thinking supporting sexual offending and blame attribution would differ depending on the offence characteristics of different groups of sexual offenders. Method: Two groups of sexual offenders separated on the basis of the age of their victims (sex offenders against children, 36; sex offenders against adults, 30) were compared on measures of cognitive distortions relating to sex with children and rape and a measure of blame attribution which assesses external, mental element, and guilt feeling attributions. Results: Child sexual offenders endorsed more cognitive distortions relating to sex with children, but there were no group differences in cognitive distortions relating to rape. Those who offended against adults reported more external attributions and child offenders reported more guilt feeling attributions. Mental element attribution related to alcohol intoxication and use of violence in the offence, but was not related to group differences. Conclusions: Results are interpreted as suggesting that child sex offenders support their offending by more enduring distorted cognitions, while those who offend against adults use blame attributions associated with the particular offence.

Sexual Offenses and Consent

In this paper I address a question that has not been a prominent feature of cases or articles which have concerned the issue of consent in relation to sexual offenses. Much work has been done by judges and legal theorists regarding the defendant’s beliefs about the consent of the complainant and the mental element or mens rea of this offense. But, any answers to these questions presuppose some answer to a prior question: What is consent? What must be true of a person who does consent? What must be missing, on the other hand, in a situation where sexual activity takes place without consent?Common sense provides a relatively simple answer to these questions: To consent is to give permission; a person acts without consent where no such permission has been obtained. It is this answer that I want to defend in this paper. This view assumes that talk of consent only makes sense in relation to some autonomy right. Giving consent involves autonomously making changes in a prevailing pattern of rights and obligations. It is a limited withdrawal of a right not to be interfered with; and it will make legally permissible actions that would otherwise be subject to criminal and civil penalties. To me it seems obvious that such a change in the prevailing pattern of rights and obligations can only take place where there is communication between the parties. This means that the question of consent is not just a question about the state of mind or attitude of the complainant. Rather, the matter which should be central to a court’s consideration of consent is the question of what was said or done that could be construed as granting permission to do the acts in question.

The Promulgation of Penal Provisions

The following is an extract from a larger piece of research undertaken for the Law Commission's Drafting Manual project, one aspect of which deals with the legislative drafting of penal provisions. Within that area, specific issues arose such as: Should an offence be created at all? What are the factual elements of the offence? What mental element is appropriate? What defences are to be available? How should the provisions be promulgated (e.g., in a statute? in regulations? in rules?)? This article addresses the problems raised by that last issue.

The intoxication defense in Canada: why women should care

This paper explains the impact on women--as victims/witnesses and as accused persons--of the Supreme Court of Canada's decision in R. v. Daviault' regarding the defense of intoxication. Prior to the decision in Daviault, the defense of intoxication was available for only one class of criminal offenses: those described as offenses (defined below). The defense was therefore absolutely barred for all other offenses, including sexual assault, manslaughter, and common assault. The effect of Daviault is to make a new defense, that of intoxication, available for all of these offenses. If successful, the defense means that men accused of sexual assault, wife assault, and femicide will be acquitted and not subject to any sanctions. This paper is divided into three sections. Section I gives an overview of the law of the intoxication defense and the impact of the Canadian Charter of Rights and Freedoms2 on the law and on the resulting Daviault decision. Section II analyzes the implications of Daviault for women who have been victimized by violent offenders and for women charged with criminal offenses. Section III provides a description and an assessment of options for reform of the law after Daviault, including those canvassed by the Department of Justice in its recodification project. I. The law of the intoxication defense A. Pre-Charter The early response of the criminal law in England to an accused's allegations that he should not be held responsible for a crime committed while intoxicated was unequivocally negative.3 In 1920 the English case of D.P.P. v. Beard4 established the intent/general classification that still survives in Canadian law today. This classification is anomalous in that it is applicable only to the law governing intoxication; it has no relevance to any other criminal law issue. The effect of this classification was to make voluntary intoxication available as a defense for certain crimes, those characterized as offenses, while still precluding intoxication as a defense for offenses. The Supreme Court of Canada has adopted, as part of Canadian common law, this understanding of the intoxication defense and the classification scheme, most notably in R. v. George,5 R. v. Leary,b and R. v Swietlinski.7 The law governing the intoxication defense applies whether the accused has abused alcohol, drugs, or some combination of the two.8 Specific intent offenses are, with some exceptions,9 those offenses where either the Criminal Code of Canada10 or the common law defines the mental element of the offense as one that is specifically focused on producing a particular consequence. The idea is that for such offenses, extreme intoxication could impair the accused's capacity to deliberately pursue a course of action intended to result in a particular outcome. For example, the following offenses have been put in the specific intent category by the judiciary: murder (requires proof of intention to cause the death of the victim),11 theft (requires proof of intent to deprive another permanently of his property),12 touching a child for a sexual purpose,13 uttering a threat to cause death,14 and using violence to overcome a victim's resistance.15 General intent offenses are those that have as their mental element an intent to commit the immediate act, without reference to producing any specific consequences. For these offenses, it is thought that the mental element is so minimal as to require only basic voluntariness, and that no amount of alcohol or drug consumption, short of insanity, could obliterate one's capacity to intend one's immediate physical movements. Alternatively, it has been stated by judges that the mental element involved in voluntarily incapacitating oneself is sufficiently blameworthy to allow it to be substituted for the mental element for general intent offenses. …