Criminal Law Defenses: Mens Rea, Capacity, and More
Criminal Law Defenses
Negation of Mens Rea
Negation of mens rea:
- We speak of the defense of accident in a case in which the conscious conduct of the accused constitutes the actus reus of the crime charged. The allegation always is that the accused did not intend to produce the prohibited consequences (an accused who has been negligent or subjectively reckless will not escape liability).
- Ignorance of fact is a defense if it results in the accused lacking the intention, subjective recklessness, or guilty knowledge which is expressly or impliedly required by the definition of the offense charged.
- A mistake of fact or law on the part of the accused is a defense if it results in her/him lacking the intention, recklessness, or guilty knowledge.
Defense provided by the definition of the offense. In such a case, the accused is liable to punishment in the absence of any fault on his part and is said to be under strict liability.
Capacity Defenses
Children
The age of an accused person may provide her/him with a defense on a criminal charge.
Insanity
Everyone is presumed sane until the contrary is proved. It is a defense to criminal prosecution for the accused to show that he/she was laboring under such a defect of reason, due to disease of mind, as either not to know the nature and quality of her/his act, or if he/she did know this, not to know that he/she was doing wrong.
Diminished Responsibility
This is merely a mitigating factor limited to charges of murder and, if successfully pleaded, reducing liability from murder to manslaughter.
Automatism and Other Involuntary Conduct
An act, omission, or event on the part of the accused is involuntary where it is beyond her/his control; where it is beyond the control of that person’s mind the situation is known as one of automatism. The accused cannot rely on the defense.
Intoxication
Voluntary intoxication is not a defense in itself (exception: if a specific intent is an essential element of the offense charged). Where the accused was involuntarily intoxicated he/she has a defense if the intoxication prevented her/him having the necessary mens rea for the offense.
Other Defenses
Duress
Unlawful pressure exerted upon a person to coerce that person to perform an act that he or she ordinarily would not perform.
Necessity
The defense of necessity recognizes that there may be occasions when a person is justified to respond by breaking the law. It can be raised as a defense in cases of self-defense or prevention of crime.
Participation
Accomplice (Accessory)
A person who aids, abets, counsels, or procures the commission of an offense is liable to be tried and punished for that offense as a principal offender.
Assault and Related Offenses
Assault – A person is guilty of an assault if he/she intentionally or recklessly causes another person to apprehend immediate and unlawful force by action or by word.
Aggravated assaults:
- Assault with intent to rob
- Assault with intent to resist arrest
- Assault occasioning actual bodily harm
- Assault on a police officer acting in the execution of his duty
(Source: R. Card, Introduction to Criminal Law, Butterworths, 1980.)
Battery – A person is guilty of battery if he/she intentionally or recklessly uses unlawful force to another person. The force may be applied directly or indirectly. The act may be momentary or continuing.
Wounding and grievous bodily harm – The accused must be proved to have acted unlawfully and maliciously. Maliciously means that the accused must have been aware that his act might have the consequences of causing some physical harm to some other person, i.e., that he acted intentionally or subjectively recklessly in relation to such harm.
Harassment and Kidnapping
Harassment
A person whose course of conduct causes another, on at least two occasions, alarm or distress and the person knows or ought to know that this course of conduct will cause the other alarm or distress on each of those occasions is guilty of harassment.
Kidnapping
The nature of the offense is an attack on, and infringement of, the personal liberty of an individual. It contains four ingredients as follows:
- The taking or carrying away of one person by another
- By force or fraud
- Without the consent of the person so taken or carried away
- Without lawful excuse
(Source: R v D [1984] AC 778 at 800, HL)