Specific Crimes

Legal and social norms regarding gender relations have undergone dramatic changes in the past 25 years. The changes have come about largely because of the confluence of changing economic and technological realities, the unfolding of the norm dictating equal treatment of individuals, the sexual revolution and its corollaries of improved contraception and legal abortion, the rise of women as a self-conscious group and a presence in the academy, and the interrelations of all of these factors. As men and women have (...) come to share dormitories and workplaces, and as the old mores governing sexhave broken down, there has been struggle and uncertainty over what norms should apply to sexual relations. (shrink)

For too long, criminal law scholars overlooked immigration-based offences. Claims that these offences are not ‘true crimes’ or are a ‘mere camouflage’ to pursue non-criminal law aims deflect attention from questions concerning the limits of criminalization and leave unchallenged contradictions at the heart of criminal law theory. My purpose in this paper is to examine these offences through some of the basic tenets of criminal law. I argue that the predominant forms of liability for the most often used immigration offences (...) are, at least in principle, controversial and depart from what is often presented as the paradigm in criminal law. Above all, immigration offences are objectionable because they fall short in fulfilling the harm principle and, given that criminal punishment as used against immigration offenders is often a secondary, ancillary sanction to deportation, they license excessive imposition of pain. (shrink)

Since the 1970s, sexual assault laws have evolved to include prohibitions of sexual acts with cognitively impaired individuals. The argument justifying this prohibition is typically as follows: A sex act that is forced (without the legally valid consent of) someone is sexual assault. Cognitively impaired individuals, because they lack certain intellectual abilities, cannot give legally valid consent. Therefore, cognitively impaired individuals cannot consent to sex. Therefore, sex acts with cognitively impaired individuals is sexual assault. The prohibition of sex with such (...) individuals is regarded by many as a significant advance. It certainly seems to be an improvement upon the days in which individuals could engage in sex with cognitively impaired adults with impunity regardless of the physical, emotional and psychological consequences such sex acts caused for those individuals. Yet, this legislation raises serious puzzles. For example, in the U.S., cognitively impaired individuals are routinely convicted for sexual assault with non-cognitively impaired minors. How should we think about the conviction of a cognitively impaired individual who has sex with an underage, non-cognitively impaired individual? Does this imply that cognitively impaired persons are capable of understanding the criminality of failing to obtain legal consent while being, nonetheless, incapable of giving such consent? Should the law address only those cases in which either both or neither of the individuals involved are cognitively impaired? If so, why? -/- In this paper, I claim that shifting the analysis to one based on harms (away from legal standards of consent) better captures our intuitions about sex acts involving cognitively impaired individuals. (Indeed, a review of case law reveals a focus within these cases on the harms experienced by the impaired individuals involved.) I close the paper by identifying the difficulties that plague any legislation concerning individuals with mental impairments. (shrink)

Unjustifiable assumptions about sex and gender roles, the untamable potency of maleness, and gynophobic notions about women's bodies inform and influence a broad range of policy-making institutions in this society. In December 2004, the U.S. Court of Appeals for the Sixth Circuit continued this ignoble cultural pastime when they decided Everson v. Michigan Department of Corrections. In this decision, the Everson Court accepted the Michigan Department of Correction's claim that “the very manhood” of male prison guards both threatens the safety (...) of female inmates and violates the women's “special sense of privacy in their genitals” and declared that sex-specific employment policies for prison guards is not impermissibly discriminatory. I believe that the Court's decision relies on unacceptable stereotypes about sex, gender and sexuality and it significantly undermines Title VII's power to end discriminatory employment practices. (shrink)

The punishment of criminals is a topic of long-standing philosophical interest since the ancient Greeks. This interest has focused on several considerations, including the justification of punishment, who should be permitted to punish, and how we might best set punishments for crimes. This entry focuses on the most important contributions in this field. The focus will be on specific theoretical approaches to punishment including both traditional theories of punishment (retributivism, deterrence, rehabilitation) and more contemporary alternatives (expressivism, restorative justice, hybrid theories, (...) unified theories) with an additional section on capital punishment, perhaps the particular form of punishment that has received the most sustained philosophical attention. These theories of punishment address two important questions: first, who should be permitted to punish and, secondly, who should be permitted to be punished. These questions then concern the justification of punishment and its distribution. While the majority today often identifies their theories as retributivist, there is a great diversity of theories defended. This entry will highlight the leading work for each view. (shrink)

abstract Shame punishments have become an increasingly popular alternative to traditional punishments, often taking the form of convicted criminals holding signs or sweeping streets with a toothbrush. In her Hiding from Humanity, Martha Nussbaum argues against the use of shame punishments because they contribute to an offender's loss of dignity. However, these concerns are shared already by the courts which also have concerns about the possibility that shaming might damage an offender's dignity. This situation has not led the courts to (...) reject all uses of shaming, but only to accept shaming within certain safeguards. Thus, despite Nussbaum's important reservations against shame punishments, it may still be possible for her to accept shaming within specific parameters such as those set out by the courts that protect the dignity of an offender. As a result, she need not be opposed to the use of legitimate shame punishment. (shrink)

Rapid adoption and expansion of the CCTV systems in Turkey as well as all over the world have produced a fair amount of ―technological determinism‖ among many law enforcement officials, which Norris and Armstrong (1999, p. 9) define as ―an unquestioning belief in the power of technology‖. As a matter of technological determinism, politicians and the public continue to myopically expect that the exclusive responsibility of preventing crime rest on the police-monitored CCTV cameras. Conversely, policy makers may be better informed (...) if they consider why the law enforcement agencies should invest in the installation of the CCTV cameras in public areas based on the research. In fact, a well-designed evidence based paradigm in the CCTV literature is likely to reveal the truth about the question of ―does it work?‖ In addition to all previous methodological efforts, empirical evaluations in the CCTV literature are still needed to account for alternative perspectives to measure their effectiveness in the deterrence of crimes. Therefore, the present study focused on the concepts of environmental criminology, namely "crime risk at place". This research also considered the environmental risk values that might identify ―environmental conditions under which cameras would be most effective‖ (Caplan et al., 2011, p.271). Thus, the concept of ―Environmental risk value" provided a unique methodological approach to the police- monitored CCTV literature. This study examined the impact of the metropolitan city of Bursa‘s city-wide system  and certain individual police-monitored CCTV camera‘s views used to scan the landscape, respectively on street level, including aggravated assault, auto theft, thefts from autos, and larceny theft crime incident numbers in a spatial distribution of locations; and analyzed whether the environmental risk value effects on the deterrent effect of police-monitored CCTV cameras on aforementioned crime types. To accomplish that statistical analyses (paired t test, location quotient, and regression models) and risk terrain modeling (RTM) were conducted in this dissertation. Three important findings were found in this study. Firstly, city-wide system effect indicated that larceny thefts and thefts from auto experienced significant reduction. However, aggravated assaults and auto thefts were not. Secondly, the results from assessing the deterrent effect of certain individual police-monitored CCTV cameras on aggravated assaults, larceny thefts, thefts from autos and auto thefts were mixed. Finally, each individual CCTV camera has a unique environment – environmental risk value that influences its deterrent effect on – aggravated assaults, larceny thefts, thefts from autos and autos theft. Further, the affect was discernable and in positive direction for each crime type. Environmental risk value assessments can advance our understanding of the deterrent effect of CCTV cameras at their viewshed areas. So environmental risk sites must be taken into account when the decision process concerning CCTV cameras is made by local and national level policy makers, police agencies and politicians who try to establish where the most appropriate location to install police-monitored CCTV cameras is. In this respect RTM can be considered as a pre intervention tool so that police agencies can measure the deterrent effect of CCTV before installation. Such a pre-evaluation process increases the capacity for effective police management and crime prevention strategies in police agencies. (shrink)

Both liberals and feminists have long criticized the paternalistic approach to prostitution found in most jurisdictions in the U.S. In his recent book Prostitution and Liberalism, Peter de Marneffe defends just such an intervention, arguing that the demonstrated harmfulness of a life of prostitution justifies paternalistic policies aimed at reducing the number of women who are involved in it. Although de Marneffe does not endorse the prohibitionist approach typical in the U.S., he argues that the best reasons for alternative approaches (...) to the practice (including some forms of regulated legalization) are necessarily paternalistic. In my paper, I question de Marneffe’s contention that the strongest reasons for state intervention with regard to prostitution are paternalistic in nature. I argue that reasonable state action toward prostitution is best understood not as a paternalistic intervention to remedy some moral or epistemological failure on the part of prostitutes, but rather as an attempt to advance the interests of vulnerable parties more generally concerning what they reasonably desire but could not otherwise ensure. I further argue that such an approach might favor abolitionist over regulatory policies, depending upon how the vulnerable class is defined. (shrink)

Feminist legal scholarship has questioned the usefulness of non-consent as a criterion for rape. Under conditions of generalized sexual oppression, consent may not be an adequate for absence of coercion. I defend this argument and propose that rape law reform can be usefully informed by state protection of workers in the capitalist labor market, where it is assumed that the parties occupy an unequal bargaining position.

Our drug policy has been widely deemed a failure because the criminalization of drug use has not succeeded in reducing prevalence rates. I contend that the most promising basis to defend the justifiability of drug offenses is to construe them as proxy crimes: offenses designed to prevent the commission of other, more serious crimes. I make a case that many law enforcement officials use drug proscriptions for this purpose in the real world. When construed as proxy crimes, drug prohibitions are (...) less vulnerable to some of the familiar objections brought against their legitimacy. Nonetheless, the justification for punishing those who violate drug proscriptions remains unpersuasive. (shrink)

One proposed way of preserving the link between criminal negligence and blameworthiness is to define criminal negligence in moral terms. On this view, a person can be held criminally responsible for a negligent act if her negligence reflects a deficit of moral concern. Some theorists are convinced that this definition restores the link between negligence and blameworthiness, while others insist that criminal negligence remains suspect. This article contributes to the discussion by applying the work of ethicist Nomy Arpaly to criminal (...) negligence. Although not interested in legal issues herself, Arpaly has a well-developed theory of moral agency that explains moral concern in terms of responsiveness to moral reasons. Introducing her work to the ongoing scholarly debate will be helpful for two reasons. First, while a definition of negligence in terms of moral concern is recognized as one proposed solution to the negligence–blameworthiness problem, authors promoting it have yet to give a systematic account of moral concern and its relation to blame. Borrowing Arpaly's account will help clarify the idea of moral concern so that both proponents and critics of a concern approach to negligence can have a better-defined debate. Second, her theory of blameworthiness is especially suited to defending the blameworthiness of negligent actions, because it does not have recourse to a special quality of choice or self-control that must be active to render conduct blameworthy. To make this second advantage clear, the article argues that reliance on choice or self-control problematizes blameworthiness for negligence. Those who wish to defend blameworthiness for negligent acts should base their work on an account of moral agency that does not rely on either choice or self-control to explain when an action is blameworthy. (shrink)

According to legal expressivism, neither crime nor punishment consists merely in intentionally imposing some kind of harm on another. Crime and punishment also have an expressive aspect. They are what they are in part because they enact attitudes toward others—in the case of crime, some kind of disrespect, at least, and in the case of punishment, society’s condemnation or reprobation. Punishment is justified, at least in part, because (and when) it uniquely expresses fitting condemnation or other retributive attitude. What makes (...) retributive attitudes fitting is that they protect the victim’s status as inviolable. Hate or bias crimes dramatize the expressive aspect of crime, as they are often designed to send a message to the victim’s group and society at large. Treating the enactment of contempt and denigration toward a historically underprivileged group as an aggravating factor in sentencing may be an appropriate way to counter this message, as it reaffirms and indeed realizes the fundamental equality and inviolability of all members of a democratic community. (shrink)

Abstracts This study aims to examine the predictors of attitude and intentions toward Internet piracy in South Korea. Also, it intends to suggest a model of Internet piracy demonstrating the casual effects of factors of individual attitude and intentions toward Internet piracy. The results demonstrated that moral obligations and subjective norms are significant predictors of an individual’s attitude toward Internet piracy. Moreover, three factors—moral obligation, perceived behavioral control, and attitude—are essential antecedents of an individual’s intention to engage in Internet piracy. (...) The findings of this study embrace multiple implications for factors affecting piracy and promote future research around this topic. Content Type Journal Article Category Original Paper Pages 1-18 DOI 10.1007/s13520-012-0017-5 Authors Hyoungkoo Khang, Department of Advertising and Public Relations, College of Communication and Information Sciences, The University of Alabama, Tuscaloosa, AL, USA Eyun-Jung Ki, Department of Advertising and Public Relations, College of Communication and Information Sciences, The University of Alabama, Tuscaloosa, AL, USA In-Kon Park, Sungkyunkwan University, Seoul, South Korea Seon-Gi Baek, Sungkyunkwan University, Seoul, South Korea Journal Asian Journal of Business Ethics Online ISSN 2210-6731 Print ISSN 2210-6723. (shrink)

Blackjack players who “count cards” keep track of cards that have already been played and use this knowledge to turn the probability of winning in their favor. Though casinos try to eject card counters or otherwise make their task more difficult, card counting is perfectly legal. So long as card counters rely on their own memory and computational skills, they have violated no laws and can make sizable profits. By contrast, if players use a “device” to help them count cards, (...) like a calculator or smartphone, they have committed a serious crime. -/- I consider two potential justifications for anti-device legislation and find both lacking. The first is that, unlike natural card counting, device-assisted card counting requires cognitive enhancement. It makes card counting less natural and is unfair to casinos and should therefore be prohibited. The second potential justification relies on the privacy of our thoughts. On this view, natural card counting is a kind of cheating that warrants punishment. We do not criminalize natural card counting, however, because such laws would interfere with our thought privacy. Since concerns about thought privacy are less applicable to device-assisted counting, we can prohibit device-assisted counting without violating our rights to freedom of mind. While I do not purport to show that these justifications are hopeless, I present reasons to doubt that they will ultimately prove successful. (shrink)

Issues include attempts generally; the problem of outcome luck; the impossibility defense; physical movement and intent; and reckless attempts, attempted rape, and attempted theft. In the final section, I offer a hypothetical that challenges Prof. Donnelly-Lazarov's theory.

For over a century now, American scholars (among others) have been debating the merits of “bad Samaritan” laws — laws punishing people for failing to attempt easy and safe rescues. Unfortunately, the opponents of bad Samaritan laws have mostly prevailed. In the United States, the “no-duty-to-rescue” rule dominates. Only four states have passed bad Samaritan laws, and these laws impose only the most minimal punishment — either sub-$500 fines or short-term imprisonment. -/- This Article argues that every state should criminalize (...) bad Samaritanism. There are three main reasons. First, criminalization is required by the supreme value that we place on protecting human life, a value that motivates laws against both homicide and manslaughter. Second, criminalization is recommended by the “proportionality principle” — i.e., the principle that a law’s level of punishment should be directly proportional to the moral severity of the offense. Third, criminalization would yield a number of significant benefits, including helping to minimize needless deaths and injuries and providing society with an institutional outlet for its outrage against bad Samaritans. -/- Still, many objections have been leveled against bad Samaritan laws. This Article will argue that while some of these objections — for example, the objections involving foundational criminal law principles such as the actus-reus requirement, the harm principle, and causation — are all easily refuted, five other objections are not. These five objections involve pragmatic considerations such as the difficulties with obtaining evidence against bad Samaritans and psychological considerations such as people’s understandable reasons for not wanting to “get involved.” This Article will then put these five objections into reflective equilibrium with the moral arguments for bad Samaritan laws and conclude that while bad Samaritanism should indeed be criminalized, the punishment that convicted bad Samaritans receive should be mild — certainly milder than the level of punishment recommended by the “proportionality principle.” The corollary of this conclusion is that the criminal law should sometimes abandon the proportionality principle. (shrink)

Disclosure of true but reputation-damaging information is generally legal. But threats to disclose true but reputation-damaging information unless payment is made are generally criminal. Many scholars think that this situation is paradoxical because it seems to involve illegality mysteriously arising out of legality, a criminal act mysteriously arising out of an independently legal threat to disclose conjoined with an independently legal demand for money. -/- But this formulation is not quite right. The real paradox raised by the different legal statuses (...) of blackmail threats to disclose and disclosure itself involves a contradiction between our strong intuition that blackmail threats should be criminal and some equally strong arguments, all of which depend on the fact that disclosure is legal, that blackmail threats should be legal. So an adequate solution to the real Blackmail Paradox requires us either to drop the intuition or to refute the pro-legalization arguments. -/- This Article will adopt the latter approach. It will explain why the six main arguments for legalizing blackmail threats all fail. In the course of refuting one of these arguments, it will also offer a novel positive justification for criminalizing blackmail threats: they should be criminal for the same reason that menacing, harassment, and stalking are criminal--namely, because they involve the reasonable likelihood, and usually the intent, of putting the victim into a state of especially great fear and anxiety. -/- Of course, one might object that disclosure itself is likely to have the same effect, if not malicious purpose. Yet, again, it is still legal. But this point shows only that we as a society value freedom of speech more than we value freedom from infliction of emotional injury. It does not show that we do not value freedom from infliction of emotional injury sufficiently to protect it when competing moral or institutional interests such as freedom of speech are not at stake. (shrink)

A surprisingly large number of scholars believe that (a) we are blameworthy, and therefore punishable, only for what we have control over; (b) we have control only over our actions and intentions, not the consequences of our actions; and therefore (c) if two agents perform the very same action (e.g., attempting to kill) with the very same intentions, then they are equally blameworthy and deserving of equal punishment – even if only one of them succeeds in killing. This paper argues (...) against these “equivalence theorists” that harmful consequences do make a moral difference, that the harm produced by the killer’s attempt retroactively makes her action more blameworthy, and therefore deserving of more punishment, than the failed attempter’s attempt. The primary argument for this “non-equivalence theory” is an analogy with gambling. Just as a gambler makes a deal with the casino to allow metaphysical luck to retroactively determine the “profit status” of her bet, so too the attempted killer makes a deal with “the casino of morality” to allow metaphysical luck to retroactively determine the moral status of her attempt. She makes the “moral deal” that if her attempt succeeds, her attempt was more blameworthy than if her attempt does not succeed. And it is the greater blameworthiness of the killer’s attempt that justifies our intuition that the killer should be punished more harshly than the failed attempter. (shrink)

When we define something as a crime, we generally thereby criminalize the attempt to commit that crime. However, it is a vexing puzzle to specify what must be the case in order for a criminal attempt to have occurred, given that the results element of the crime fails to come about. I argue that the philosophy of action can assist the criminal law in clarifying what kinds of events are properly categorized as criminal attempts. A natural thought is that this (...) project should take the form of specifying what it is in general to attempt or try to perform an action, and then to define criminal attempts as attempts to commit crimes. Focusing on Gideon Yaffe's resourceful work in Attempts (Oxford University Press, 2010) as an example of this strategy, I argue that it results in a view that is overly inclusive: one will count as trying to commit a crime even in the far remote preparatory stages that we in fact have good reason not to criminalize. I offer an alternative proposal to distinguish between mere preparations and genuine attempts that has its basis not in trying, but doing: a criminal attempt is underway once what the agent is doing is a crime. Working out the details of this schema turns out to have important implications for action theory. A recently burgeoning view known as Naive Action Theory holds that all action can be explained by appeal to some further thing that the agent is doing, and that that the same explanatory nexus is at work even when we appeal to what the agent is intending, trying, or preparing to do -- these notions do explanatory work because they too refer to actions that are in progress, albeit in their infancy. If this is right, than the notion of 'doing' will also be too inclusive for the purposes of the criminal law. I argue that we should draw the reverse conclusion: the distinctions between pure intending, trying, preparing, and doing serve an important purpose in the criminal law, and this fact lends support to the view that they are genuine metaphysical and explanatory distinctions. (shrink)

Should an adolescent offender be punished more leniently than an adult offender? Many theorists believe the answer to be in the affirmative. According to the diminished culpability model, adolescents are less mature than adults and, therefore, less responsible for their wrongdoings and should consequently be punished less harshly. This article concerns the first part of the model: the relation between immaturity and diminished responsibility. It is argued that this relation faces three normative challenges which do not allow for easy answers (...) and which are still widely ignored in the comprehensive discussion of the diminished culpability model. (shrink)

Over the past decade, both the doctrine and the practice of criminal law have come under intensely critical review by feminist scholars and reformers. The territory under reexamination by or because of feminists spans the problems of women as witnesses, defendants, and prisoners in the criminal justice system; it extends to the situation of women as potential victims and offenders in diverse offense circumstances. Crimes in which the defendant or victim is typically female are predictable subjects of feminist concern, but (...) attention has extended as well to the dynamics of women's experience in connection with such offenses as assault, shoplifting, drug offenses, and even armed robbery. Feminist criticism and reform efforts have focused for the most part at the level of specific rules or particular areas of practice. In this paper I want to comment on the structure of the feminist critique and to compare its underlying assumptions to those of criminal law as it has been traditionally understood and practiced. In at least some of its prominent versions, feminism entails orientations and commitments incompatible with those of the received criminal law tradition. To the extent that this is true, criminal law, constructed and expounded almost exclusively by males, can fairly be characterized as “sexist” or at least “gendered” in its core assumptions. Moving to normative ground, I suggest that if the descriptive claims of the feminist movement are true to any substantial extent, then criminal law – conceived in terms seemingly uncongenial to a large part of our population – would require thorough reexamination. (shrink)

Equality in administrative law and procedure is a Dicean concept. It delves into the fact that there must be equality in treatment between public servants and the ordinary citizen. The State-citizen divide in the legal system has always been a debatable issue that only some have sought to address. This issue also comes to the fore in the area of criminal law. With its roots in the French droit administratif, the system of having disciplinary proceedings for certain crimes conducted by (...) public servants is a facet of the Indian administrative system. It marks the diversion from the old common law system. That however is not the problem. The problem arises when there is a difference in the punishment meted out to these persons for the crimes they have committed that are way different from those meted out to the ordinary citizen for the same crime. Section 197 of the Code of Criminal Procedure still remains as a bar to prosecuting government servants with the latest case being that of UP Chief Miniser Mayawati where the Governor refused to give a sanction under Section 197. This despite a SC decision in Prakash Singh Badal v. Union of India in December 2006 stating that no sanction is required in corruption cases. It is observed that the Indian legal system is one bridled with impunity and looks at placing the State above the law. This, despite very well knowing that the state is the creation of the law and consists of the ordinary man itself. In light of the above theoretical framework, this paper would like to explore the diverse link between disciplinary proceedings and ordinary criminal law. Along with analyzing the laws relevant, the researchers would also be looking at the collection of data concerning the punishments to public servants and finally presenting an argument as to why such a system must not be present today. (shrink)

At both the federal and state levels, numerous criminal laws require individuals to report suspicions of criminal conduct, such as child and elder abuse, violent crimes including domestic violence, environmental crimes, and financial offenses. Reporting duties are imposed on people in many different types of professions, depending on the type of offense being reported, and increasingly may be imposed on all persons without regard to profession. The laws have made the failure to report criminally punishable and, in some instances, all (...) for civil liability as well. This Article examines several types of reporting duties to highlight the trend to turn numerous types of professionals into a white-collar police force. The Article aims to raise awareness of the gradual transformation of our legal culture brought about by the increasing numbers of laws requirement professionals to report suspicions of criminality. It places reporting laws in their proper context in criminal law theory, somewhere between "Good Samaritan" laws that impose a duty to rescue and public welfare offenses that regulate certain industries on a strict liability basis. The Article proposes that the evidentiary trigger for reporting duties should be increased to "clear and unequivocal evidence" in order to properly balance the benefits of reporting against the harm of possible over-reporting and the damage done to many professional relationships by the abrogation of privileges and confidentiality of reporting requirements. (shrink)

In this Commentary, Professor Sandra Guerra Thompson urges her colleagues who teach and write on the subjects of criminal law and procedure to explore the growing intersection of immigration law and criminal law. Her Commentary addresses the plight of the millions of long-term residents of the United States who do not have citizenship, legal residency or a visa. She discusses the implications of changes in law enforcement policy regarding persons found within national borders - as opposed to those found in (...) transit while crossing the border. Current policies signal a change in the role of state and local police officers and their relations with immigrant communities. The integration of federal immigration enforcement into local criminal law enforcement also dramatically affects a defense attorney's responsibilities in representing immigrants as even a minor crime can have dramatic collateral consequences. The use of state criminal justice processing systems to ferret out defendants without legal residency also alters the nature of a prosecutor's plea bargaining position in those cases, not to mention the sentencing authority of a trial judge. Finally, the use of criminal prosecution for federal crimes related to immigration violations - a blunt tool previously used judiciously for real criminals - is now increasingly used in cases involving individuals attempting to return to their families after deportation or who purchase phony documents for use in obtaining employment. The breakup of families due to the detention, deportation, and possible prosecution of family members also creates grave humanitarian issues. The many new legal and policy challenges our country will face as we move in the direction of greater immigration enforcement present a rich array of new topics for teaching and scholarship. (shrink)

In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any relevant (...) facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)