Multiple approaches to criminal behavior & elements of crime-a critical analysis

Chapter – 1 Introduction

 

2. Concept of crime:

As started earlier, crime has been defined as an anti-social , immoral or sinful behavior which is contrary to the cherished norms, beliefs, customs and traditions of a given society. According to another school of thought  , crime is an act which is particular social group regards  as sufficiently menacing to its fundamental interests to justify formal reaction to restrain the violation .Stephen has  defined ‘crime’as an act which is both forbidden by law  and revolting to the normal sentiments of the society

Crime’ is any from of conduct which is declared to be socially harmful in a state and as such forbidden by under pain of some punishment. Therefore, Tappan has defined crime as, an or omission in violation of criminal law, committed without any defense or justification and penalized by the law as felony or misdemeanor.’’ Cross and Jones define crime as a legal wrong the remedy for which is punishment of the offender at the instance of the state.

John gillin defines crime as an act that has been shown to be actually harmful to the society or that is beloved to be socially harmful by a group of people that has power to enforce its beliefs and that places such act upon the ban of positive penalties. Thus he considers crime as an offence against the law of the land. In the words of Donald Taft, crime is asocial injury and an expression of subjective opinion varying in time and place. Halsbury defines crime as an unlawful act which is an offence against the public and the perpetrator of that act is liable to legal punishment. So, it may be said that a crime is a wrong to society involving the breach of a legal wrong which has criminal consequences attached to it prosecution by the state in the criminal court and the possibility of punishment being imposed on the wrongdoer. Crime and social policy are inter-related and the concept of crime depends largely on the social values, accepted norms and behavioral patterns of a particular society at a given time.

 

Books: Jurisprudence. Writer: V.D. Mahajan. Page: 139 to 141.

Books: Major Legal Systems. Writer: Rene David. Page: 434.

 

2.1 An overview of criminal law:

The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different jurisdictions whose common characteristic is the potential for unique and often severe impositions as punishment for failure to comply. Criminal punishment, depending on the offense and jurisdiction, may include execution, loss of liberty, government supervision (parole or probation), or fines. There are some archetypal crimes, like murder, but the acts that are forbidden are not wholly consistent between different criminal codes, and even within a particular code lines may be blurred as civil infractions may give rise also to criminal consequences. Criminal law typically is enforced by the government, unlike the civil law, which may be enforced by private parties.

Chapter – 3 Elements of crime:

 

An element of a crime (collectively called elements of crime) is a basic set of common law principles regarding criminal liability that, with few exceptions, constitute the essential elements to prove that the defendant committed a crime under United States law. The jury must be convinced beyond a reasonable doubt that the defendant committed each element of the particular crime charged before deciding on a guilty verdict. The component parts that make up any particular crime vary depending on the crime.

The basic components are listed below. However, the two necessary elements that must coexist for a crime to exist is that the defendant must have committed an act and that act must have been committed intentionally.

3.1 Actus reus:

The actus reus — sometimes called the external element or the objective element of a crime — is the Latin term for the “guilty act” which, when proved beyond a reasonable doubt in combination with the mens rea, i.e., the “guilty mind”, produces criminal liability in common law-based criminal law jurisdictions Canada, Australia, New Zealand, England, Scotland and the United States. In the United States, some crimes also require proof of an attendant circumstance.

Concepts:

The terms actus reus and mens rea are derived from the principle stated by Edward Coke (pronounced ‘Cook’), namely, actus non facit reum nisi mens sit rea, [1] which means: “an act does not make a person guilty unless (their) mind is also guilty”, i.e., the general test is one that requires proof of fault, culpability or blameworthiness both in behavior and mind. In this respect, the role of automatism is highly relevant in providing a positive explanation of the need to demonstrate the voluntaries of the behavior for it to found liability. Once the actus reus has been established in a conventional offence, there must be a concurrence of both actus reus and mens rea (and in the United States, for some crimes, an attendant circumstance) to justify a conviction.

There are some exceptions to the general rule that a “guilty mind” must be

proved. Most legislatures create so-called strict liability offences, which criminalise the behavior without the need to prove a mens rea in relation to all the actus reus elements. The majority of these offences are either quasi-criminal or relatively low fault instances of behavior. Even in these cases, liability may sometimes still be negated if automatism is present.

When discussing the nature of an actus reus or guilty act, legal scholars distinguish between:

  • commissions, “conduct” or affirmative and positive “acts”; and
  • omissions or failures to act.
  • Commonwealth legal scholars add a third class, namely a state of affairs.

Act:

For both common law and statutory offences, establishing the detailed list of elements necessary to constitute the offence and their scope is a matter of interpretation which may require the courts to review and revise precedents to ensure that the current interpretations match the current needs. For example, if an offence uses a verb such as “inflict” or “enter”, it is for the courts to lay down the factors by which to distinguish the forms of action that might satisfy the requirement. Burglary requires “entry as a trespasser” so if the accused cut a hole in a window and introduced a fishing rod into the room to catch jewellery, would this be an entry? Equally, if a surgeon performs a life-saving operation knowing that the patient did not consent, did he or she inflict injury by cutting open the patient as victim with a knife? At times, these decisions will have profound moral and practical implications for a society, with the rulings of judges and the findings of juries reflecting prevailing attitudes on issues as controversial as euthanasia and assisted suicide, sexual relationships, and the various forms of business activities that should or should not be crimes. By altering the interpretation of the elements of a crime, courts may in effect criminalise behaviour retrospectively.

 

[1]  Eadie, T. & Morley, R. (2003) ‘Crime, Justice and Punishment’ in Baldock, J. et al (eds) Social Policy (3 rd edn.) Oxford: Oxford University Press

[1] Walklate, S (2003) Understanding Criminology – Current Theoretical Debates, 2nd edition, Maidenhead: Open University Press.

 

Omission:

An omission is failing to do something. Judge Stephen J held that an omission cannot make a person guilty – he highlighted this statement with his scenario: “A sees B drowning. A does nothing to help B. B drowns. A is in no way responsible for failing to help or to summon help.” Having said this, there are 5 exceptions to this rule – where the defendant owed the victim some sort of duty.

  • A Contractual Duty. In R v Pittwood, a railroad crossing guard failed to do his duty and shut the gate onto the rail road. A person walked through the gate, was hit by a train and killed; the gate keeper was guilty of manslaughter.
  • A Duty because of a Relationship (usually parent and child). In R v Gibbons and Proctor, the defendant and his wife failed to feed his young daughter; she died through malnourishment. The defendants were guilty of an omission.
  • A Duty taken on voluntarily. In R v Stone and Dobinson, the defendant’s voluntarily took on the duty to look after Stone’s elderly sister, who was unable to take proper care of herself. She died as a result of their lack of proper care. The defendants were guilty.
  • Through one’s Official Duty. In R v Dytham, the defendant was a police officer who witnessed an assault take place. He did not intervene and failed to summon help. He was guilty of the victim’s injuries because of his failure to act as a police officer.
  • A duty which arises because the defendant has set in motion the chain of events. In R v Miller, the defendant was a squatter staying in a house. He fell asleep whilst holding a lit cigarette, and set fire to the room he was in. Instead of putting the fire out, or calling for help, he moved to another room to sleep there instead; the defendant was guilty of arson.

As well as omissions in Criminal Law, there are also omissions in the Law of Tort (Negligence), such as –

  • Failing to act despite the duty of care owed to another person. For example, a mother allows a 3 year old child to drown when they could have been easily saved without any risk to the mother.

It is important to understand that the law does not criminalise (in nearly all instances) not doing something, although there is sometimes a moral issue which clouds judgment. A person may be morally wrong, but that does not mean they are criminally liable.

 State of affairs:

These are offences that occur even though the defendant didn’t act voluntarily. A number of offences are defined as a situation or context, e.g., “being found within enclosed premises” and “being drunk in charge of a motor vehicle”. These are usually strict liability and a conviction can be sustained even though an accused did not act in a wholly voluntary manner. Hence, if a person falls asleep in a quiet corner of a library and is locked in by inadvertent staff, the offence will be committed, but the relatively low level of fault could be reflected in the sentence. In Martin v State (1944) 31 Ala App 334 17 so 2d 427. Martin was arrested at home and taken onto the highway by police officers, where he showed signs of being drunk. His conviction for being drunk on a public highway was quashed because his arrival on the highway was not voluntary. Whereas in R v Larsonneur (1933) 24 Cr. App. R. 74 Larsonneur, a French citizen, was served with an order requiring her to leave the UK and not return. Instead of returning to France, she traveled to Ireland, and was deported back to England where she was arrested for “being found in the United Kingdom”. The Court of Criminal Appeal held that the involuntary circumstances under which she was returned were “perfectly immaterial”. In Winzar v Chief Constable of Kent (1983) the Times, 28 March 1983, where the charge was one of being “found drunk on a highway” contrary to s12 Licensing Act 1872, Winzar had originally been found drunk in a hospital and asked to leave. When he failed to do so, police officers

removed him to their patrol car, which was parked on the highway outside, and then charged him with the offence in question. Upholding the conviction, Goff LJ. Pointed out that a distinction would otherwise have to be drawn between the drunk who leaves a restaurant when asked to do so and the drunk who is forcibly ejected after refusing to leave. If both are arrested in the street shortly afterwards, it would be wrong for the courts to regard the former as guilty and the latter as not. But the U.S. approach of abuse of process might prevail if the police were to drag a person from his own bed and into the street before charging him with being found drunk on a highway.

3.2 Causation (law):

Causation is the bringing about of a result, and in law it is an element in various tests for legal liability. Most tests for legal liability in criminal and civil law require the defendant to have ‘caused’ the result of which the plaintiff complains. For example:

  • Homicide (criminal law): requires that the accused have caused the victim’s death
  • Negligence (civil law): requires that the defendant have caused the harm that befell the plaintiff
  • Breach of contract (civil law): requires that the defendant’s breach have caused the plaintiff’s loss.

If the plaintiff/prosecution cannot establish the causal link between the defendant’s act and the plaintiff’s/victim’s harm, then liability will not be established.

3.3 Mens Rea:

In criminal law, mens rea — the Latin term for “guilty mind” [2] — is usually one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means that “an act does not make a  guilty unless there is guilty mind is “.The two conditions must be satisfied before a criminal liability can be imposed. The first condition is physical condition which means the existence of an unlawful act. The second condition is the means rea or the guilty mind. Unless and until both conditions are present at the time same time no criminal liability arises. A guilty mind must consist of either intention or negligence. The guilty mind does not depend generally on the nature or motive behind the act. Guilty has to be in the immediate intent or negligence. Mens rea must extend to the three parts of an act viz., the physical doing or not doing, the circumstances and the consequences if mens rea does not entend to any part of the act, there should be no guilty mind behind the act. The from which mens rea assume will depend on provisions of the particular legal system. Thus, in jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged .The exception is strict liability crimes (in the civil law, it is not usually necessary to prove a subjective mental element to establish liability, say for breach of contract or a tort, although if intentionally committed, this may increase the measure of damages payable to compensate the plaintiff).

Quite simply, therefore, mens rea refers to the mental element of the offence that accompanies the actus reus. In some jurisdictions, the terms mens rea and actus reus have been superseded by alternative terminology. In Australia, for example, the elements of all Federal offences are now designated as “Fault Elements” (mens rea) and “Physical Elements” (actus reus). This terminology was adopted in order to replace the obscurity of the Latin terms with simple and accurate phrasing.[3]

There are four general classes of mens rea (the words used may vary from one state to another and from one definition to another) but the substance is:

  1. Intention; (purpose)
  2. Knowledge;
  3. Recklessness sometimes termed willful blindness which may have a different interpretation in the United States; or
  4. Negligence

3.4 Intention (criminal):

In the criminal law, intention is one of the three general classes of mens rea necessary to constitute a conventional as opposed to strict liability crime. An intention is the purpose or design with which an act is done. This may consist of an intention to perform some further act, an intention to bring about certain consequences or perhaps merely an intention to do the act itself. Intention is defined in R. v Mohan as “the decision to bring about a prohibited consequence”. A range of words is used to represent shades of intention in the various criminal laws around the world. The most serious crime of murder, for example, traditionally expressed the mens rea element as malice aforethought, and the interpretations of malice, “maliciously” and “willfully” vary between pure intention and recklessness depending on the state and the seriousness of the offence.

The test of intention:

The policy issue for those who administer the criminal justice system is that, when planning their actions, people may be aware of many probable and possible consequences. Obviously, all of these consequences could be prevented through the simple expedient either of ceasing the given activity or of taking action rather than refraining from action. So the decision to continue with the current plan means that all the foreseen consequences are to some extent intentional, i.e. within and not against the scope of each person’s intention. But, is the test of culpability based on purely a subjective measure of what is in a person’s mind, or does a court measure the degree of fault by using objective tools?

For example, suppose that A, a jealous wife, discovers that her husband is having a sexual affair with B. Wishing only to drive B away from the neighborhood, she goes to B’s house one night, pours petrol on and sets fire to the front door. B dies in the resulting fire. A is shocked and horrified. It did not occur to her that B might be physically in danger and there was no conscious plan in her mind to injure B when the fire began. But when A’s behavior is analyzed, B’s death must be intentional. If A had genuinely wished to avoid any possibility of injury to B, she would not have started the fire. Or, if verbally warning B to leave was not an option, she should have waited until B was seen to leave the house before starting the fire. As it was, she waited until night when it was more likely that B would be at home and there would be fewer people around to raise the alarm.

On a purely subjective basis, A intended to render B’s house uninhabitable, so a reasonably substantial fire was required. The reasonable person would have foreseen a probability that people would be exposed to the risk of injury. Anyone in the house, neighbors, people passing by, and members of the fire service would all be in danger. The court therefore assesses the degree of probability that B or any other person might be in the house at that time of the night. The more certain the reasonable person would have been, the more justifiable it is to impute sufficient desire to convert what would otherwise only have been recklessness into intention to constitute the offence of murder. But if the degree of probability is lower, the court will find only recklessness proved. Some states used to have a rule that if a death occurred during the commission of a felony, sufficient mens rea for murder would automatically be imputed. For the most part, this rule has been abolished and direct evidence of the required mental components is required. Thus, the courts of most states use a hybrid test of intention, combining both subjective and objective elements, for each offence changed.

In English law, section-8 Criminal Justice Act 1967 provides a statutory framework within which mens rea is assessed. It states:

A court or jury, in determining whether a person has committed an offence,

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but

(b) Shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

Under section 8(b) therefore, the jury is allowed a wide latitude in applying a hybrid test to impute intention or foresight (for the purposes of recklessness) on the basis of all the evidence.

 

Offenses of basic and of specific intent

In some states, a distinction is made between an offence of basic (sometimes termed “general”) intent and an offence of specific intent.

i. Offenses requiring basic intent specify a mens rea element that is no more than the negligent or reckless commission of the actus reus. The actor either knew (recklessness) or should have known (negligence) that his action (actus reus) would result in the harm suffered by the victim. The crime of battery, for example, only requires the basic intent that the actor knew or should have known that his action would lead to harmful contact with the victim.

ii. A limited numbers of offences are defined to require a further element in addition to basic intent, and this additional element is termed specific intent. There are two classes of such offences:

(a) Some legislatures decide that particular criminal offences are sufficiently serious that the mens rea requirement must be drafted to demonstrate more precisely where the fault lies. Thus, in addition to the conventional mens rea of intention or recklessness, a further or additional element is required. For example, in English law, s18 Offences against the Person Act 1861 defines the actus reus as causing grievous bodily harm but requires that this be performed:

  1. unlawfully and maliciously — the modern interpretation of “malice” for these purposes is the modern “recklessly” and the sui generis rule of statutory interpretation gives “unlawfully” the same meaning; and with
  2. the intent either to cause grievous bodily harm or to resist lawful arrest.

The rule in cases involving such offences is that the basic element can be proved in the usual way, but the element of specific intent must be shown using a more subjective than objective test so that the legislature’s express requirement can be seen to be satisfied.

(b) The inchoate offences such as attempt and conspiracy require specific intent in a slightly different sense. The rationale for the existence of criminal laws is as a deterrent to those who represent a danger to society. If an accused has actually committed the full offence, the reality of the danger has been demonstrated. But, where the commission of the actus reus is in the future and the accused is merely acting in anticipation of committing the full offence at some time in the future, a clear subjective intention to cause the actus reus of the full offence must be demonstrated. Without this specific intent, there is insufficient evidence that the accused is the clear danger as feared because, at any time before the commission of the full offence, the accused may change his or her mind and not continue. Hence, this specific intent must also be demonstrated on a subjective basis.

Direct and oblique intent

This has two applications:

a. When a person is planning to achieve a given consequence, there may be several intermediate steps that have to be taken before the full result as desired is achieved. It is not open to the accused to pick and choose which of these steps are or are not intended. The accused will be taken to intend the accomplishment of all outcomes necessary to the fulfillment of the overall plan. For example, if A wishes to claim on B’s life insurance policy so shoots at B who is sitting in a bus, the bullet may have to pass through a window. Thus, even though A may not have desired B’s death, it was an inevitable precondition to a claim. Similarly, he may never consciously have considered the damage to the window, but both the murder and the damage under the Criminal Damage Act 1971 will be intended. This is distinguishing between the direct intention which is the main aim of the plan, and the oblique intention which covers all the intermediate steps. More generally, a person directly intends a consequence when his purpose or aim is to cause it even though he believes that the likelihood of it succeeding is remote. In R v Dadson, for example, the defendant shot at a man whom he wrongly believed to be out of range. In R v Mohan (1975) 2 All ER 193 it was held that direct intention means, “aim or purpose” – “a decision to bring about, insofar as it lies within the accuser’s power, the commission of the offence. No matter whether the accused desired that consequence of his act or not.”

b.Sometimes, by accident, a plan miscarries and the accused achieves one or more unintended consequence. In this situation, the accused is taken to have intended all of the additional consequences that flow naturally from the original plan. This is tested as matters of causation and concurrence, i.e. whether the given consequences were reasonably foreseeable, there is no novus actus interveniens and the relevant mens rea elements were formed before all of the actus reus components were completed.

 

 

3.5 .Knowingly (knowledge):

In law knowledge is one of the degrees of mens rea that constitute part of a crime. For example, in English law, the offence of knowingly being a passenger in a vehicle taken without consent (TWOC) requires that the prosecution prove, not only that the defendant was a passenger in a vehicle and that it was taken by the driver without consent, the prosecution must also prove that the defendant knew that it was taken without consent.

Under the principle of ignorantia juris non excusat, ignorance of or mistake about the law is no defence. The mens rea of knowledge refers to knowledge about certain facts. It is “a positive belief that a state of affairs exists.”

Knowledge can be:

  • Actual;
  • Constructive;
  • Imputed.

 

[1] Carter, Floyd J. vs U.S. (June 12, 2000). Retrieved on 200805-04.

 

 Actual knowledge:

A defendant does not have actual knowledge if he believes something to the contrary. The standard is subjective and the belief of the defendant need not be reasonable, only honest. For example, in R v. Williams [4] the defendant intervened in what he thought was a mugging but was in fact a citizen’s arrest. His mistake was upheld as a defence against a charge of assault. In Beckford v. R [5] the defendant was a police officer who shot and killed V. Beckford claimed that he believed that V was shooting at him. It was found that the correct test was whether D “honestly believed” facts which, if true, would establish a defence. The reasonableness of the belief would be evidential in finding whether it was truly believed.

 

 Constructive knowledge:

Knowledge is also found where a defendant suspects that circumstances exist and “deliberately decides not to make any further enquiries” in case his suspicions prove well founded.  A common example is a person who purchases signally inexpensive and unprofaned, but desirable items from a stranger. Such a person is likely to be fixed with constructive knowledge that the items were stolen.

Imputed knowledge:

This is relevant in strict liability offences and in corporate crime. For example, if a bar manager delegates his duties to others and those others know of unlawful activities on the premises, the manager can be fixed with imputed knowledge of the unlawful activities.

3.6 Recklessness (criminal):

In the criminal law, recklessness (sometimes also termed willful blindness which may have a different meaning in the United States) is one of the four possible classes of mental state constituting mens rea (the Latin for “guilty mind”). To commit an offence of ordinary as opposed to strict liability, the prosecution must be able to prove both a mens rea and an actus reus, i.e., a person cannot be guilty for thoughts alone. There must also be an appropriate intention, knowledge, recklessness, or criminal negligence at the relevant time. Recklessness may constitute an offense against property or involve significant danger to another person.

Criminal law recognizes recklessness as one of the mens rea elements to establish liability. It shows less culpability than intention, but more culpability than criminal negligence. The test of any mens rea element is always based on an assessment of whether the accused had foresight of the prohibited consequences and desired to cause those consequences to occur. The three types of test are:

a. subjective where the court attempts to establish what the accused was actually thinking at the time the actus reus was caused;

b. objective where the court imputes mens rea elements on the basis that a reasonable person with the same general knowledge and abilities as the accused would have had those elements, although R v Gemmell and Richards deprecated this in the UK; or

c. Hybrid, i.e. the test is both subjective and objective.

The most culpable mens rea elements will have both foresight and desire on a subjective basis. Recklessness usually arises when an accused is actually aware of the potentially adverse consequences to the planned actions, but has gone ahead anyway, exposing a particular individual or unknown victim to the risk of suffering the foreseen harm but not actually desiring that the victim be hurt. The accused is a social danger because he or she is gambling with the safety of others and the fact that the accused might have taken some steps to try to avoid the injury from occurring is relevant only to mitigate the sentence. Note that gross criminal negligence represents such a serious failure to foresee that in any other person, it would have been recklessness. Hence, the alternative phrase “willful blindness” acknowledges the link representing either that the accused deliberately engineered a situation in which he or she was ignorant of material facts, or that the failure to foresee represented such a danger to others that it must be treated as though it was reckless.

English law:

The modern definition of recklessness has developed from R v. Cunningham (1957) 2 AER 412 in which the definition of ‘maliciously’ for the purposes of the Offences Against The Person Act 1861 was held to require a subjective rather than objective test when a man released gas from the mains while attempting to steal money from the pay-meter. As a result the gas leaked into the house next door, and partially asphyxiated the man’s mother-in-law:

In any statutory definition of a crime, malice must be taken … as requiring either:

(1) an actual intention to do the particular kind of harm that in fact was done; or

(2) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).

Since then, the pendulum has swung between subjective and objective, and currently rests nearer to the subjective end of the scale.

American Law:

Black’s Law Dictionary defines recklessness in American law as “Conduct whereby the actor does not desire harmful consequence but…foresees the possibility and consciously takes the risk,” or alternatively as “a state of mind in which a person does not care about the consequences of his or her actions.” Black’s Law dictionary 1053 (Bryan A. Garner ed., 8th ed. abr. 2005). In American courts, a wrongdoer who recklessly causes harm can be held to the same liability as a person who intentionally does so.R v Caldwell (1982) 1 AER 961

[1]. Lozano, Juan A.. “Judge vacates conviction of Ken Lay“, Associated Press, 17 October 2006

 

Caldwell, a disgruntled former hotel employee who had recently been fired by his boss, got very drunk one night in late 1979 and decided to set fire to his former employer’s hotel, intending to damage the property. At the time he set the blaze, however, there were ten guests asleep inside the hotel, and though the fire was extinguished quickly, Caldwell was charged not only with arson (to which he pleaded guilty), but with the more serious charge of arson with intent to endanger human life.

In English law, the offence of “arson” was abolished in the Criminal Damage Act 1971, although the use of the word was retained to express the particular “horror” with which the public views offences involving the deliberate use of fire. Caldwell was convicted under s1(2) Act 1971, which requires that the defendant shall:

(a) intend to destroy or damage any property or be reckless as to [the same] and

(b) intend by the destruction or damage to endanger the life of another or be reckless as to whether the life of another would be thereby endangered.

The House of Lords was mainly concerned with the extent to which self-induced drunkenness could be a defence to offences of specific intent and basic intent (see intention), the latter would encompass recklessness. The Lords ultimately ruled that self-induced intoxication could be a defence to specific intent, but not to basic intent, i.e. recklessness. Although the discussion of recklessness tends to be largely obiter dicta, Lord Dip lock’s discussion contains what was intended as a model direction, namely that a defendant is reckless when:

(1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged; and

(2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognized that there was some risk involved and has nonetheless gone on to do it.

To that extent, the test is one of obviousness, i.e. if it would have been obvious to the reasonable person, the defendant will be taken to have foreseen it. But the focus of this test is the nature of the defendant’s conduct rather than his mental state and it became the subject of major criticism. For example, how was the direction to apply to the defendant who had considered the risk and only continued to act after deciding (wrongly as it would later appear) that no risk existed? In Elliot v C (a minor) (1983) 2 AER 1005, a 14-year-old schoolgirl of low intelligence, who was tired and hungry, inadvertently burned down a garden shed. It was accepted that she did not foresee the risk of fire, and that she had not considered the possible consequences of her action but the court reluctantly followed Caldwell. In the broader context, the Road Traffic Act 1991 reformed the offence of reckless driving by reverting to the old terminology of dangerous driving, i.e. apparently replacing a mens rea requirement with a fault element requiring dangerousness (see death by dangerous driving for the statutory version of a test of obviousness). In the continuing judicial debate, Lord Keith observed in R v Reid (1992) 3 AER 673 (a reckless driving case, that an absence of something from a person’s state of mind is as much part of his or her state of mind as is its presence. Inadvertence to risk is no less a subjective state of mind than is disregard of a recognized risk. Lord Keith stressed that Lord Diplock qualified the model direction as “an appropriate instruction” only, seeking to introduce different standards for different offences. It was further argued that the model direction breached Article 6 of the European Convention on Human Rights in cases involving a minor or other person’s of reduced capacity. The requirement is that “everyone is entitled to a fair and public hearing”. But, to judge the moral and legal culpability of a child by reference to the understanding and life experience of an adult is irrational and, therefore, unfair. In effect, it imposes strict liability. However, Z and others v United Kingdom (2002) 34 EHRR characterizes Article 6 as procedural rather than substantive. It is also to be noted that after much criticism, the decision in R v Caldwell (1981) was overruled by the House of Lords in the case of R v G (2003).Caldwell-style reckless (an objective test) was phased out after the case of R v G (see below), which introduced a form of subjective recklessness to cases involving criminal damage. The majority of mens rea of recklessness is now ‘tested’ using the Cunningham test.

Two boys, aged 11 and 12 years, were camping without their parents’ permission when they entered the back yard of a shop in the early hours of the morning, lighting some newspapers which they had found in the yard, they left, with the papers still burning. The newspapers set fire to nearby rubbish bins standing against the shop wall, where it spread up the wall and on to the roof of the shop. Approximately £1m damage was caused. The children argued they expected the fire to burn itself out and said they gave no thought to the risk of it spreading. When their appeal reached the House of Lords, Lord Bingham saw the need to modify Lord Diplock’s definition to take account of the defence of infancy which contains the concept of “mischievous discretion”. This rule requires the court to consider the extent to which children of eight or more years are able to understand the difference between “right” and “wrong”. The Diplock test of obviousness might operate unfairly for 11- and 12-year-old boys if they were held to the same standard as reasonable adults. Bingham stated that a person acts ‘recklessly’ with respect to:

(i) a circumstance when he is aware of a risk that it exists or will exist;

(ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.”

This brings the test back to a subjective standard so that defendants can be judged on the basis of their age, experience and understanding rather than on the standard of a hypothetical reasonable person who might have better knowledge and understanding. Nevertheless,

R v G and another [2003] 1 Cr App R 21

 

the test remains hybrid because the credibility of the accused’s denial of knowledge and understanding will always be judged against an objective standard of what you would expect a person of the same general age and abilities as the accused to have known.

In Booth v Crown Prosecution Service (2006) All ER (D) 225 (Jan), the Divisional Court upheld the defendant pedestrian’s conviction on a charge under the Criminal Damage Act 1971 that, by rashly dashing into the road, he recklessly damaged the vehicle that hit him. This result must be correct if a pedestrian does actually consider the possibility of damage any vehicle that might become involved in an accident, but it seems more likely that, if the defendant stopped to consider any risks at all, it would surely have been confined to the risk of his own injury.

3.7 Criminal negligence:

In the criminal law, criminal negligence is one of the three general classes of mens rea (Latin for “guilty mind”) element required to constitute a conventional as opposed to strict liability offence. It is defined as:

Careless, inattentive, neglectful, willfully blind, or in the case of gross negligence what would have been reckless in any other defendant.

Discussion:

To constitute a crime, there must be an actus reus (Latin for “guilty act”) accompanied by the mens rea (see concurrence). Negligence shows the least level of culpability, intention being the most serious and recklessness of intermediate seriousness, overlapping with gross negligence. The distinction between recklessness and criminal negligence lies in the presence or absence of foresight as to the prohibited consequences. Recklessness is usually described as a ‘malfeasance’ where the defendant knowingly exposes another to the risk of injury. The fault lies in being willing to run the risk.

     www.chicagotribune.com  Archive for Sunday, March 25, 2008.

             www.ips interpress service.net  Saturday 29, November 2008.

 

But criminal negligence is a ‘misfeasance or ‘nonfeasance’ (see omission), where the fault lies in the failure to foresee and so allow otherwise avoidable dangers to manifest. In some cases this failure can rise to the level of willful blindness where the individual intentionally avoids adverting to the reality of a situation (note that in the United States, there may sometimes be a slightly different interpretation for willful blindness). The degree of culpability is determined by applying a reasonable person standard. Criminal negligence becomes “gross” when the failure to foresee involves a “wanton disregard for human life” (see the discussion in corporate manslaughter).

The test of any mens rea element is always based on an assessment of whether the accused had foresight of the prohibited consequences and desired to cause those consequences to occur. The three types of test are:

  1. subjective where the court attempts to establish what the accused was actually thinking at the time the actus reus was caused;
  2. objective where the court imputes mens rea elements on the basis that a reasonable person with the same general knowledge and abilities as the accused would have had those elements; or
  3. hybrid, i.e. the test is both subjective and objective.

The most culpable mens rea elements will have both foresight and desire on a subjective basis. Negligence arises when, on a subjective test, an accused has not actually foreseen the potentially adverse consequences to the planned actions, and has gone ahead, exposing a particular individual or unknown victim to the risk of suffering injury or loss. The accused is a social danger because he or she has endangered the safety of others in circumstances where the reasonable person would have foreseen the injury and taken preventive measures. Hence, the test is hybrid.

Examples of criminally negligent crimes are criminally negligent homicide and negligent endangerment of a child. Usually the punishment for criminal negligence, criminal recklessness, criminal endangerment, willful blindness and other related crimes is imprisonment, unless the criminal is insane (and then in some cases the sentence is indeterminate).

 3.8 Ignorantia juris non excusat:

Ignorantia juris non excusat or Ignorantia legis neminem excusat (Latin for “ignorance of the law does not excuse” or “ignorance of the law excuses no one”) is a public policy holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content; that is, persons have presumed knowledge of the law.

Explanation:

The rationale behind the doctrine is that if ignorance were an excuse, persons charged with criminal offenses or the subject of civil lawsuits would merely claim they were unaware of the law in question to avoid liability, whether criminal or civil. Thus, the law imputes knowledge of all laws to all persons within the jurisdiction no matter how transiently. Even though it would be impossible, even for someone with substantial legal training, to be aware of every law in operation in every aspect of a state’s activities, this is the price paid to ensure that willful blindness cannot become the basis of exculpation. Thus, it is well settled that persons engaged in any undertakings outside what is common for a normal person, such as running a nuclear power plant, will make themselves aware of the laws necessary to engage in that undertaking. If they do not, they cannot complain if they incur liability.

The doctrine assumes that the law in question has been properly published and distributed, for example, by being printed in a government gazette, made available over the internet, or printed in volumes available for sale to the public at affordable prices.

In the Criminal Law, although ignorance may not clear a defendant of guilt, it can be a consideration in sentence, particularly where the law is unclear or the defendant sought advice from law enforcement or regulatory officials. For example, in one Canadian case, a person was charged with being in possession of gambling devices after they had been advised by customs officials that it was legal to import such devices into Canada. Although the defendant was convicted, the sentence was an absolute discharge.

In addition, there were, particularly in the days before satellite communication and cellular phones, persons who could genuinely be ignorant of the law due to distance or isolation. For example, in a case in British Columbia, pair of hunters were acquitted of game offenses where the law was changed during the period of time they were in the wilderness hunting. In reaching this decision, the court refused to follow an early English law case in which a seaman on a clipper before the invention of radio was convicted even though the law had been changed while he was at sea (Bailey (1800) Russ & Ry 1).

 

[1] The American Heritage Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company, 2004. (Accessed: January 27, 2008)

 

Part -2

 

Multiple Approaches to Criminal Behavior:

 

All theories of criminal behavior try to address the question of why people commit crime on the assumption that such a course of action is inexplicable therefore criminals are somehow different from the rest of us, and that there might be a single cause of criminal behavior. Most psychological researches tell us that our behavior is a complex interaction between genetic, environmental, social and cultural factors.

 

 

Chapter -4 Different Theories of Criminal Behavior

 

4.1 The Theory of Cesaro Lomborso:

The first attempt to understand the personality of offenders in physical terms was made by Lomborso of the Italian school of criminological thought who is regarded as the originator of modern criminology. He was the first employ scientific methods in explaining criminal behavior and shifted the emphasis from crime to criminal. The classified criminals into three main categories:-

(i)                 The Atavists or hereditary criminals.—He also termed them as born-criminals. In his opinion born-criminals were of a distinct type who could not refrain from indulging in criminality and environment had no relevance whatsoever to the crimes committed by the Atavist.

(ii)              Insane criminals.—The second category of criminals according to him congested of insane criminals who resorted to criminality on account certain mental depravity or disorder.

(iii)            Criminoids.—The Third category of criminals according to him was those of criminoids who were physical criminal type and had a tendency to commit crime to overcome their inferiority in order to meet the needs of survival.

He was the first criminologist who made an attempt to understand the personality of offenders in physical terms. He employed scientific methods in explaining criminal behavior and shifted the emphasis from crime to criminality. His theory was that criminals were different physically from normal persons and possessed few physical characteristics of inferior animal world.

 

4.2  The Theory of Enrico Ferri:

Enrico Ferri was a chief exponent of the positive school of criminology. He challenged Lombrosian view of criminality. Through his scholarly researches he proved that may are biological reasons were not enough to account for criminality. He believed that emotional reaction, social infirmity or geographical conditions also play a vital role in determining criminal tendencies in man. He emphasized that criminal behavior is an out come of a variety of factors having their combined effect on the individual. According to him social change, which is inevitable in a dynamic society, result in disharmony, conflict and cultural variation. As a result of this, social disorganization takes place and traditional patterns of social control mechanism totally break down. In the weak of such rapid social changes, the incident of crime is bound to increase tremendously. The heterogeneity of social conditions destroys the congenial relationship, creating a social vacuum which proves to be a fertile ground for criminality.

 

4.3 The Theory of Gabriel Tarde:

Gabriel de Tarde, the eminent French criminologist and social psychologist, he was a critic of positive school of criminology. He asserted that influence of social environment was most emphatic on the criminal behavior and the biological and physical factors one had a casual effect on it. He pointed out that law of insertion and imitation was responsible for the incidence of crime the members of society are prone to imitate the behavior of their associates. Likewise, the subordinate or inferior members have a tendency to imitate the ways of their superiors. Consequently, as regards crimes, the beginners have a tendency to imitate the acts of habitual criminals and thus they lend into criminality. The effect of imitation is still worse on youngersters who are prone to fall on easy prey to criminality. Particularly, the impact of move and cinema and television is so great on teenagers that it perverts their thoughts and actions which eventually make them delinquents. Thus there is considerable truth in Trade’s assertion that, “crime like other social phenomenon starts as a fashion and becomes a custom.” He critised Lombroso’s anthrometric  measurements on which he formulated his theory of criminal behavior, and offered a  social explanation of crime. He asserted that criminal behavior is the result of a learning process, therefore, any speculation regarding direct relationship between physical appearance and criminal propensities of criminals would mean overlooking the real causes of criminality. He also denounced the proposition of phrenologists who tried to establish a correlation between the skull, the brain and the social behavior of a person.

 


Chapter -5

Biological and Psychological Perspectives

 

 5.1 Biological Factors and criminality:

Biological differences in human personality also account for criminality in human beings. The logic behind biological explanation of crime is that structure determines function and persons behave differently owing to the fact that they are somehow structurally different. The physical and biological abnormalities are generally responsible for criminal behavior. Boi-criminalogy investigates the physical aspects of psychological disorders. It has been known for some time that adults who suffer from depression show abnormalities in brain waves during sleep, experience disturbed nervous system functioning and display biochemical abnormalities. Research on depress children revels the same physical problems and furthermore, their adult relatives show high rates of depression as well. In fact, children whose parents suffer from depression are more then four times more likely then the average child to experience a similar illness. It thus appears that depression in an inherited condition that manifests itself in psychological and physical disturbances. They investigate the biological correlates of criminality, including a genetic predisposition to commit crime. The XYY symptome through now generally discounted as of criminality suggest that aggressive and violent behavior may be at least partly determined by genetic factors.

 

Genetic and Environmental Influences on Criminal Behavior

 

Criminal behavior has always been a focus for psychologists due to the age old debate between nature and nurture. Is it the responsibility of an individual’s genetic makeup that makes them a criminal or is it the environment in which they are raised that determines their outcome? Research has been conducted regarding this debate which has resulted in a conclusion that both genes and environment do play a role in the criminality of an individual. This evidence has been generated from a number of twin, family, and adoption studies as well as laboratory experiments. Furthermore, the research has stated that it is more often an interaction between genes and the environment that predicts criminal behavior. Having a genetic predisposition for criminal behavior does not determine the actions of an individual, but if they are exposed to the right environment, then their chances are greater for engaging in criminal or anti-social behavior.

There is a vast amount of evidence that shows our criminal justice system is the new home for individuals with psychological problems. Although this may seem like a solution to some, it is creating a dilemma for our society. Once we label these individuals as criminals it creates a stigma for those who may suffer from psychological problems. Certain psychological problems have been shown to be heritable and if given the right circumstances, individuals with those genes could find themselves engaging in criminal activity. Therefore, should society look towards limiting the reproductive capabilities of individuals who suffer from certain psychological problems to better society?

That same question was asked back in the late nineteenth and early twentieth centuries when the role of genetics in crime was widely accepted (Joseph, 2001). Prominent researchers believed that genes were fully responsible for criminal activity and that criminals could be identified by their physiological features. Along with this information and the idea of a eugenics movement during the same time period, it was not surprising to learn that acts of sterilization took place to rid society of “criminals, idiots, imbeciles, and rapists” (Joseph, 2001, p. 182). This period was therefore marked with inhumane treatment and the belief that genes were the sole reason behind criminal behavior.

Not long after the practices of controlled breeding, there was evidence to support the idea that the environment also played an important role in crime. Early family studies were conducted that showed a predisposition for criminal behavior as a result of inherited characteristics, but that an individual’s characteristics and personality could still be modified by the environment (Joseph, 2001). Although these studies were void of high validity and reliability, it still raised the question of whether the environment can also influence individuals to act in a criminal manner. The debate between genetics and environment continues today with much more reliable research and data.

 

Twin, Adoption, and Family Studies:

 

There has been great debate between researchers regarding the outcomes of twin, adoption, and family studies. Some claim that these studies support the notion of a genetic basis to criminal behavior (Tehrani & Mednick, 2000). On the other hand, some have concluded that there is not enough evidence from these twin, family, and adoption studies to profess that genetics do play a role in antisocial or criminal behavior (Lowenstein, 2003).

Twin studies are conducted on the basis of comparing monozygotic (MZ) or identical twins and their rates of criminal behavior with the rates of criminal behavior of dizygotic (DZ) or fraternal twins. Ordinarily these studies are used to assess the roles of genetic and environmental influences. If the outcomes of these twin studies show that there is a higher concordance rate for MZ twins than for DZ twins in criminal behavior, then it can be assumed that there is a genetic influence (Tehrani & Mednick, 2000). A study conducted looked at thirty two MZ twins reared apart, who had been adopted by a non-relative a short time after birth. The results showed that for both childhood and adult antisocial behavior, there was a high degree of heritability involved (Joseph, 2001). This study was of particular importance because it examined the factor of separate environments. Another researcher studied eighty-five MZ and one hundred and forty-seven DZ pairs and found that there was a higher concordance rate for the MZ pairs. Ten years later after checking police records of these same twins, two other researchers concluded that there was a fifty-four percent heritability of liability to crime (Joseph, 2001). Around the same time of the study just mentioned,

The American heritage dictionary of the English language, fourth edition.

Houghton mifflin company 2004 ( Accessed October 27, 2008)

 

two researchers studied forty-nine MZ and eighty-nine DZ pairs, but found no difference in the concordance rates. They concluded therefore that in respect to common crime, hereditary factors are of little significance (Joseph, 2001). Many other twin studies have been conducted, but there is concern over the validity of those studies and their ability to separate out the nature and nurture aspects; therefore other sources of information should be examined.

Adoption studies are critical in examining the relationship that exists between adopted children and both their biological and adoptive parents because they assume to separate nature and nurture. Studies have been conducted that test for the criminal behavior of the adopted-away children, if their biological parents had also been involved with criminal activity. In Iowa, the first adoption study was conducted that looked at the genetics of criminal behavior. The researchers found that as compared to the control group, the adopted individuals, which were born to incarcerated female offenders, had a higher rate of criminal convictions as adults. Therefore this evidence supports the existence of a heritable component to antisocial or criminal behavior (Tehrani & Mednick, 2000). Another study in Sweden also showed that if a biological background existed for criminality, then there was an increased risk of criminal behavior in the adopted children. In Denmark, one of the largest studies of adopted children was conducted and found similar results to the previous studies. The defining feature of the Denmark study was that the researchers found a biological component for criminal acts against property, but not for violent crimes (Joseph, 2001). Children whose biological fathers had been convicted of property crimes were more likely to engage in similar behavior, when compared to those biological fathers who had been convicted of violent crimes. According to an article by Jay Joseph (2001), who studied all of the minor and major adoption studies, the majority of researchers have found and agreed upon the non-significance of genes in violent crime. This reestablishes the findings from the studies mentioned already in that there may be a genetic component to antisocial behavior or that genes influence criminal behavior, but specifically for property offenses.

Family studies are the third type of instrument used to assess the relationship between genetics and environmental influences on criminal or antisocial behavior. Research in this field has probably been the least accepted by psychologists and other scholars because of the degree of difficulty in separating out nature and nurture in the family environment. Children experience both the influence of their parents’ genes and also the environment in which they are raised, so it is difficult to assign which behaviors were influenced by the two factors. Twin studies have this flaw, as stated earlier, but it is more prevalent in family studies. An additional concern with family studies is the inability to replicate the results, therefore leading to a small number of studies. Regardless of these drawbacks, one family study in particular should be acknowledged for its findings.

Brunner, Nelen, Breakefield, Ropers, and van Oost (1993) conducted a study utilizing a large Dutch family. In their study they found a point mutation in the structural gene for monoamine oxidase A (MAOA), a neurochemical in the brain, which they associated with aggressive criminal behavior among a number of males in that family (Alper, 1995). These males were reported to have selective MAOA deficiency, which can lead to decreased concentrations of 5-hydroxyindole-3-acetic acid (5-HIAA) in cerebrospinal fluid. Evidence suggests that low concentrations of 5-HIAA can be associated with impulsive aggression. These results have not been confirmed in any additional family studies, which lead to a need for more studies to determine if other families share similar results (Brunner et al., 1993). However, this one family study does seem to suggest that genetics play an important role in antisocial or criminal behavior.

Bio-criminologist most recent and perhaps most impotent discover in the relation of criminal behavior to biochemical factors (food allergies, hormonal imbalances) and neurophysiologic factor.

 

Food allergies:

Investigators have identified the following food components that may result in severe allergies reactions:

  • Phenylethylamine
  • Tyramine(found in aged cheese and wine)
  • Monosodium glutamate(used as a flavor enhancer in many foods)
  • Aspartame(found in artificial sweeteners)
  • Xanthines(found in caffeine)

Each of these food components has been associated with behavioral disorders, including criminality.

 

Hormonal Imbalances:

Bio-chemical researches have tried to show that hormonal imbalances have an adverse effect on criminality. In other words, hormonal imbalances affect the thinking power of the brain and control over nervous system and this may lead to criminality. But the general consensus does not except this findings. The more accepted view is that hormonal imbalance may that as catalyst for criminal behavior and provide favorable biological environment for crime causation but criminality can not be attribute to this imbalances alone.

 

Neurophysiological factors:

Brain lesions or brain tumors have led to violent outbursts in many cases. Neurophysiological studies not only focus exclusively on brain tumors, but also include a wide range of investigation such as brain wave studies, clinical reports of minimal brain dysfunction and theoretical exploitations into the relationship between limbic system and criminality.

 

EEG abnormalities:

The electroencephalogram (EEG) is a tracing made by an instrument that measures cerebral functioning by recording by rerecording brain wave activity with electrodes that are placed on the scalp. Numerous studies that have examined the brain activity of violent prisoners reveal significant difference between the EEGs of criminals and those of noncriminals

.

Minimal brain dysfunction:

Minimal brain dysfunction (MBD) is classifies as “attention deficit hyperactivity disorder” MBD produces such asocial behavioral patterns as impulsivity, hyperactivity, aggressiveness. Low self-esteem, and temper outbursts. The syndrome is noteworthy for at least two reasons. First, MBD makes explain criminality when social theories fail to do so, that is, when neighborhood, peer and familiar associations do not suggest a high risk of delinquency. Second MBD is a easily overlooked diagnosis. Parents, teachers and clinicians tend to focus more on the symptoms of a Childs psychopathology then on the possibility of brain dysfunction.

 

5.2 Psychology And Criminality:

                 The Psychoanalytic theory of criminality attributes delinquent and criminal behavior to conscience that is either so overbearing that it arouses feelings of guilty or so weak that it can not control the individuals impulses and to a need for immediate gratification. Sigmund Freud, the founder of psychoanalysis, suggested that criminality may result from an overactive conscience that results in excessive guilty feelings. In treating patients he noticed that those who were suffering from unbearable guilty committed crimes in order to be apprehended and punished. The psychoanalytic approach is still one of the most prominent explanations for both normal and a social functioning. Three basic principles still appeal to psychologists who study criminality:

  • The actions and behavior of an adult are understood in terms of childhood development.
  • Behavior and unconscious motives are intertwined, and their action must be unraveled if we are to understand criminality.
  • Criminality is essential a representation of psychological conflict

Notwithstanding their appeal psychoanalytic treatment techniques, devised to address these principles have been controversial since there introduction by Sigmund Freud and his disciples. The controversy has involve question concerning improvement following treatment and perhaps more important, the very validity of the hypothetical conflicts that the treatment presupposes.

Moral development: 

The psychologist Lawerance Kohlbrrg, who pioneered this theory, has found that moral reasoning develops in three stages. In the first preconventional stage, children moral rules and moral values consist of the do’s and don’t that avoid punishment.A desire to avoid punishment and a belief in the superior power of authorities are thee two central reasons for doing what is right. According to this theory, children under the age of 9 to 11 usually reason at this preconventional level. They think, in effect, “if I steal, what are my chances of getting caught and punished?”

Adolescents typically reason at the conventional level. At this level, individuals believe in and have adopted the values and rules of society. Finally, at the post conventional level, individuals critically examine customs and socials rules according to their own sense of universal human rights, moral principles, and duties. According to Kohlberg and his colleagues, most delinquents and criminals reason at the preconventional level. Low moral development or preconventional reasoning alone however does not result in criminality. Other factors such as the significant social bonds may play a part.

 

Carter floyd j vs us ( june 12, 2000) Retrieved on 02-08-10

Associated press 17 october 2006

 

 

Learning aggressive and violence:

Social learning theory maintains that delinquent behavior is learned through the same psychological process as all nondelinquent behavior is learned when it is reinforced and not learned when it is not reinforced. Albert Bandura, a leading proponent of social learning theory, argues that individuals learn violence and aggression though behavioral modeling. Children learn how to behave by fashioning their behavior after that of others. Thus behavior is socially transmitted though examples, when come primarily from the family, the subculture, and the mass media. To understand the influence of the social environment outside home, social learning theorists have outside gangs, which often provide excellent modles of observational learning of violence and aggression. They have found in fact, that violence is very much a norm shared by some people in some community or gang. The highest incidence of aggressive behavior occurs where aggressiveness is a desired characteristic, as it is in some subcultures. Children learn violence in front of the television set and at the movies, as well children who have seen others being rewarded for violent acts often believe that violence and aggression are acceptable behavior.

Physiological factors such as age, sex and certain endocrinal imbalance also seen to have a correlation with the criminality of offenders. Adolescents and juveniles are more prone to offences like stealing, vandalism and sexual assaults as they readily fall a pray to the urges of sex and other lustful activities because of their tender age. The offences of theft, gambling, drunkenness, breach of traffic rules etc., are more common with young persons who are normally between the age group of 18-30 years. This is probably because of the fact that these offences involve considerable display of courage, boldness and adventure which these young persons normally possess. Persons advanced in age and experience are more prone to offences like white collar crime, fraud, cheating embezzlement etc., because the nature of these crimes require maturity of mine and tact of handle intricate situations in case of detection.

The biological and psychological theories of criminal behavior share the assumption that such behavior is caused by some underlying physical or mental condition that separates the criminals from the noncriminal.They seek to identify the “kind of person “who becomes a criminal and to find the factors that caused the person to engage in criminal behavior.

 

Chapter -6

 

Stain and Cultural Deviance Theories:

 

The strain and culture deviance perspective and formulated between 1925 and 1940 and still popular today, lake the foundation subculture theories. It focuses on the social process that cause people to engage in criminal activity. Strain and cultural deviance theories both assume that social class and criminal behavior are related, but they differ as to the nature of the relationship. Both theories locate the causes of crime in the disadvantageous position of persons at lowest stratum in a class based society.

 

6.1 The Strain theory:

 

Strain Theory is associated mainly with the work of Robert Merton. He felt that there are institutionalized paths to success in society. Strain theory holds that crime is caused by the difficulty those in poverty have in achieving socially valued goals by legitimate means. As those with, for instance, poor educational attainment have difficulty achieving wealth and status by securing well paid employment, they are more likely to use criminal means to obtain these goals. Merton’s suggests five adaptations to this dilemma:

  1. Innovation: individuals who accept socially approved goals, but not necessarily the socially approved means.
  2. Retreatism: those who reject socially approved goals and the means for acquiring them.
  3. Ritualism: those who buy into a system of socially approved means, but lose sight of the goals. Merton believed that drug users are in this category.
  4. Conformity: those who conform to the system’s means and goals.
  5. Rebellion: people who negate socially approved goals and means by creating a new system of acceptable goals and means.

A difficulty with strain theory is that it does not explore why children of low-income families would have poor educational attainment in the first place. More importantly is the fact that much youth crime does not have an economic motivation. Strain theory fails to explain violent crime, the type of youth crime which causes most anxiety to the public.

 

6.2 Cultural deviance theorists:

 

Cultural deviance theorists by contrast claim that lower class people have a different set of values, which tends to conflict with the values of the middle class. Consequently, when lower class persons conform to there own value system they may be violating conventional norms.

It attributes crime to a set of values peculiar to the lower class. The three major cultural deviance theories are social disorganization, differential association and culture conflict.

 

a) Social disorganization theory:  

It focuses on the development of high crime areas associated with the disintegration of conventional values caused by rapid industrialization, increased immigration and urbanization.

 

b) Theory of differential association:  

The theory was propounded by Edwin H. Sutherland in1939. it asserts that crime is learnt by association with others. According to him behavioral learning takes place through personal contacts with other people. This learning in the context of crime, involves both the techniques for committing the crimes and the attitudes and rationality or justification for their committal. Briefly stated the theory of differential association centers round the theme that a person becomes criminal if there is an excess of influence on him favorable to the violation of the law as compared with the influences which are unfavorable to violation of law.

 

c) Culture conflict :

In a dynamic society social change is an inevitable phenomenon the impact of modernization, urbanization and industrialization in modern dynamic society may sometimes result in social disorganization and this may lead to culture conflict between different sections of society. It may be between old and new values, local and imported values and traditional and the government imposed values.

The shift of population due to migration or immigration quite often affects the crime-rate of a given place. The culture conflict between inhabitants and immigrants results in deviant behavior.

Chapter -7

 

Sub culture Theory and The Formation of Sub cultures

 

7.1 Subcultural theory:

Related to strain theory is subculture theory. The inability of youths to achieve socially valued status and goals results in groups of young people forming deviant or delinquent subcultures, which have their own values and norms. Within these groups criminal behavior may actually be valued, and increase a youth’s status the notion of delinquent subcultures is relevant for crimes that are not economically motivated. Male gang members could be argued to have their own values, such as respect for fighting ability and daring. However it is not clear how different this makes them from ‘ordinary’ non-lawbreaking young men. Furthermore there is no explanation of why people unable to achieve socially valued goals should necessarily choose criminal substitutes. Subcultural theories have been criticized for making too sharp a distinction between what is deviant and what is ‘normal’. There are also doubts about whether young people consciously reject mainstream values.

 

7.2 The formation of subcultures:     

Strain theories explain criminal behavior as a result frustration suffered by lower class people deprived of legitimate means to reach their goals and that culture deviance theories assume that people become criminal by learning criminal values of the groups to which they belong. In conforming to their own group standards these people break the laws of the dominant culture. A subculture is a subdivision within the dominant culture that has its own norms, belief and values. Subcultures typically emerge when people in similar circumstances find themselves isolated from the mainstream and band together for mutual support. Subcultures may from among members of racial and ethnic minorities among prisoners among occupational groups among ghetto dwellers. Subcultures exist within a large society not a part from it. They therefore share some of its values. Nevertheless, the life styles of their members are significantly different from those of the dominant culture.  Subcultural theories in criminology were developed to account for delinquency among lower class males, especially for on of its most important expiration the teenage gang.

 

The subculture of violence:     

Child-rearing practices (hitting), gang activities (street wars) domestic quarrels (battering), and social events (drunken brawls) are all permeated by violence. Violence is not considered antisocial. Thus members of this subculture feel no guilty about their aggression.

Mass-media influence:

The important of mass media influencing the human mind has been repeatedly emphasized by some experts. Experience has shown that television and films have the maximum impact on the viewers due to combined audio-visual impact. Most of serials or films shown on television or cinema halls depict scenes of violence which adversely affect the viewers, particularly the young boys and girls who often tend to imitate the same in their real life situations. Most criminologists believe that films and television are major contributors to violent behavior. A survey conducted by the broadcasting group of the House of Lords indicated that exposure to media violence was closely linked with aggressive behavior.

 

Middle-class Delinquency:

Most explanations of middle class delinquency are extensions of subculture explanation of lower class delinquency. Albert Chosen, for example, suggest that change in the social structure have weakened the value traditionally associated with the delay of gratification. some criminologists say that growing number of youngsters no longer believe the way of reach there goals in through hard for and delay pleasure. Rather behavior has become more hedonistic and more peer oriented. While most youth subculture exhibits none delinquent behavior, sometime the pleasure-seeking activities have led to delinquent acts.[4] Board and rest these youngsters seek to break the monotony with artificial excitement and conspicuous consumption of cars clothes, alcohol, drugs and sexual activity.

 

Chapter -8 Social Control Theory

 

8.1 Social control theory:  

The term “social control” has taken on a wide variety of meanings in general it encompasses any mechanism that leads to conformity to social norms mainstream studies of social control take on of to approaches. Macro sociological studies focus on formal system of social control. Most contemporary criminological research takes the micro sociological approach focusing on informal control system. Travis Hirschi’s social control theory has had a long lasting impact on the scholarly community. He pointed four social bonds that promote adherence to society’s values: attachment, commitment, involvement, and belief.

 

Attachment:

The first bond, attachment, takes three forms: attachment to parents, to school (teachers), and to peers. According to Hirschi, youths who have formed a significant attachment to a parent refrain from delinquency because the consequences of such an act would be likely to place that relationship in jeopardy. The bond of affection between a parent and child thus becomes a primary deterrent to criminal activities. The strengths of this deterrent depend on the depth and quality of parent- child interaction.

Next Hirschi considered the importance of the school. He linked inability to function well in school to delinquency throw the following chain of events: academic incompetence leads to poor school performance, poor school performance results in a dislike of school, which lead to rejection of the teachers and administrators as authorities. The result is delinquent acts. Thus attachment to school depends on ones appreciations for the institution, ones perception for the institutions, ones perception of how he or she is received by teachers and peers, and how well one does in class.

Hirschi found that ones attachment to parent’s and school overshadows the bond formed with ones peers.

 

Commitment:

Hirchi’s second group of bonds consists of commitment to or investment in conventional lines of action, that is, support of conventional lines of action that tie the individual to the society’s moral or ethical code. He provided empirical support for the notion that the greater the aspiration and expectation, the more unlikely delinquency becomes. Also “students who smoke, those who drink, and those who date are more likely to commit delinquent acts,…the more the boy is involved in adult activities, the greater his involvement is delinquency.”

 

Involvement:

Hirschi’s third bond is involvement or preoccupation with activities that promote the interests of society. This bond is derived from involvement in school-related activities rather than in working-class adult activities (such as smoking and drinking).a person who is busy doing conventional things has little time for involvement in deviant activities.

 

Belief:

The last of the bonds-belief- consists of assent to the society’s value system. Essentially, the value system of any society entails respect of its laws and for the people and institutions that enforce them. The results of Hirchi” survey lead to the conclusion that if young people no longer believe that the laws are fair, their bond to society weakens and the probability that they will commit delinquent acts increases.

 

Most investigators today believe personal controls are as important as social control in keeping people from committing crimes. Albert Reiss a sociologist was one of the first researchers to isolate a group of personal and social control factors. According to Reiss, delinquency is the result of:

(i)                 a failure to internalize socially accepted and prescribed norms of behavior,

(ii)              a breakdown of internal controls, and

(iii)            a lack of social rules that prescribed behavior in the family, the school, and other important social groups.

He found that personal controls reinforce social controls. Six years after the publication of Reiss’s study, Jackson Toby proposed a different personal/social control model. He discussed the complementary role of the social disorganization of a neighborhood and an individual’s own stake in conformity. He stressed the important of a stake in conformity as a factor that keeps a person from responding to social disorganization with delinquent behavior. Ivan Nye argued that internationalized control, or self- regulation, was a product of guilty aroused in the conscience when the norms have been internalized. Indirect control comes from an individual’s identification with noncriminals and a desire not to embarrass parents and well-socialized friends by acting against their expectations. Finally, direct control, a purely external control, depends on rules, restrictions and punishments. The containment theory of Walter Reckless assume that every person has a containing external structure (a role in a social group with reasonable limits and responsibilities and alternative means of attaining satisfaction) and a proactive internal structure that depends on a good self-concept, self-control a well-developed conscience a tolerance for frustration and a strong sense of responsibility. In effort to reduce delinquency a variety of programs have been instituted to help parents Schools, and neighborhood groups develop social controls.

 



Chapter -9

Alternative Explanations of Crime: Labeling, Conflict, and Radical Theories

 

9.1 Labeling theory:

This theory viewed criminals not as inherently evil person’s engager in inherently wrong acts but rather as individuals who had criminal status conferred upon them by both the criminal justice system and the community at large. From this perspective the criminal act themselves are not particularly significant, the social reaction them, however, is. Thus deviance and its control involve a process of social definition in which response of others to an individual’s behavior is the key influence on subsequent behavior and on individual view of themselves. In focusing on the way in which the social interaction creates deviance, this theory declares that the reaction of other people and the subsequent   effects of those reactions create deviance. Once it became know that a person has engaged in deviant acts, he or she is segregated from conventional society and a label such as “thief,” “whore,”or “junki”is an attached to the transgressor. This process of segregation creates outsider or outcast from society, who begin to associate with others who also have been cast out. As more people begin to think of these peoples deviants and to respond to them accordingly, the deviants react to the response by continuing to engage in the behavior society now expect of them. Through this process their self images gradually change as well. In sum the act factor is the label that is attached to an individual: if men define situation as real, they are real in their consequences.

Basic assumptions of labeling theory:

In the 1940s the sociologist Edwin Lemert elaborated on tanneubaums discussion by formulating the basic assumption of labeling theory. He remained us that people are constantly involved in behavior that runs the risk of being labeled delinquent or criminal. Although many run that risk only a few are labled.The reason for this disparity, he contended that is that there are two kinds of deviant acts: primarily and secondary. Primarily deviations are those initial deviant acts that bring on the first social response. These acts do not affect the individual’s self-concept. It is the secondary deviations the acts that follow the societal response to the primarily deviation that are of major concern. These are the acts that result from the change in self concept brought about by the labeling process.

The scenario goes something like this:

1. An individual commits a simple deviant act (primary deviation), such as throwing a stone at a neighbor’s car.

2. There is an informal social reaction, the neighbor gets angry

3. The individual continues to break rules (primary deviations)-lets the neighbor’s dog out of the yard.

4. There is increased but still primary social reaction, the neighbor tells the youth’s parents

5. The individual commits more serious deviant act, he is caught shoplifting (still primary deviation).

6. There is formal reaction; the youth is adjudicated a “juvenile delinquent” in juvenile court.

7. The youth is now labeled “delinquent” by the court and bad by the neighborhood, by his conventional peers and by others.

8. The youth begins to think of himself as “delinquent” he joins other conventional youths.

9. The individual commits another, yet more serious deviant act (secondary deviation)- robs a local grocery store with members of a gang.

10. The individual is returned to juvenile court, has more offences added to his record, is cast further from conventional society, and takes on a completely deviant lifestyle.

According to Lambert’s theory, secondary deviance sets in after the community has become aware of an individual’s primary deviance.

9.2 Conflict theory: 

The key concept in conflict theory is power. Power is derived from the Latin potis, “able”. The powers who have political control in any given society are the ones who are able to make things happen .they have power. The theory holds that the people who possess the power work to keep the powerless at a disadvantage. The law thus have the origin in the interest of the few these few shape the values and the values in tern shape the law. It follows that the person who is defined as criminal and the behavior that is defined as crime at any given time and place mirror the society power relationship and the definitions are subject to change as other interests gain power. The changing of definition s can be seen in those acts w wee now designated as “victimlrss” crimes. The legal status of victimless crimes is subject to change. But what about murder, a crime that is considered evil in all contemporary socities?Many conflict theorists would respond that the definition of murder as a criminal offence  is like wise rooted in the effort of some groups to guard its power. A political terrorist may very well become a national hero .these theory further emphasized the relativity of norms to time and place. Capital punishment is legal in some states, outlawed in others, alcohol consumption is illegal in Saudi Arabia but not in the United States. In sum powerful groups maintain their interest by making illegal any behavior that might be a threat to them. Laws thus become a mechanism of control or “a weapon in social conflict.”

 

9.3 Radical theory:

Radical theory demands revolutionary change. It singes out the relationship between the owners of the means of production and the workers under capitalism as the toot cause of crime and of all social iniquities. This theory demands the overthrow of the existing order, which is said to perpetuate criminality by keeping the oppressed classes under the domination of the capitalist oppressor. Only true socialism can reduce the crime rate.

Labeling theory, conflict theory and radical theory offer alternative explanations of crime, in the sense that they do not restrict their inquiry to the criminals’ characteristics or to the other theories associate with crime. These three theories examine the impact of the process of law making and law enforcement on the creation of offenders.

 

Chapter -10

Sociological Theory of Criminal Behavior

 

10.1 Prof. Sutherland Theory of Criminal Behavior:

Prof. Sutherland made an intensive study of criminals & offered to major explanation for criminal behavior namely:-

 

(i)                 the process operating at the type of occurrence of which he called dynamic explanation of crime.

(ii)              the process operating in the earlier life history of the criminal which he termed as the historical or generic explanation of crime.

 

The dynamic explanation of crime causation was subsequently favored by the psychologists, biologists & physiatrists & infect formed the basic for subjective approach to crime. It suggests that the cause of criminal behavior in immediate favorable situation which the criminal finds conducive for the criminal act.

As to the generic expiation of criminal behavior Sutherland drew the following conclusions:

(1) Criminal behavior is learnt and not inherited.

(2) The process of learning criminal behavior operates through the inter-action of the criminal with other person and his association with them.

(3) The greatest influence on the individual is that of his intimate personal group which moulds his conduct in many ways.

(4) The association with regard to criminal behavior and anti criminal behavior may very in respect of its duration, priority or intensity.

 

10.2 Freud’s theory of criminal behavior:

Psychopaths contend that offenders lend into criminality on account of functional deviations and mental conflicts .Sigmond Freud explained mental conflicts in the personality of criminals in terms of ‘id’, ego and super ego. He asserted that ‘id’generets basic biological and physiological urges and impulses in a person such as sexual desire, hunger, affection for kith and kins, lust for power etc.

According to him, the ego does not exist at birth, but it something the individual learns that it is fed only after crying and child learns. The superego is largely part of the unconscious which exists in the unconscious areas of mind. It thus characterizes the fully socialized and conforming member of society. It is the impact of moral and ethical attitudes of parents with whom the child has his or her earliest contracts and relationships which helps in formation of the super ego. Thus it would be seen that id demands pleasure, while the super ego demands control and repression and both push ego towards its own. As a result of this there is conflict which is difficult to resolve. Where the super ego in a child is not well developed, he is likely to be drawn towards delinquency. He posted that the failure to develop super ego was generally the result of parents being unloving, harsh or absent during the child’s upbringing. It is for this reason that socializing processes had failed to work on those children whose latent delinquency had become dominant; the children were, therefore, dis-socil, if not anti-social.[5]

Psychologists also recognize that other factors such as relationships with persons outside the family and general social environment can also affect the formation of super-ego. If super-ego is over-developed, it my lead to guilty feelings or neurosis.

Adler attributes criminal behavior to inferiority complex and observes that crime is an overt compassion for a deep feelings of inferiority, which is often the result of distrust or neglect of child by the parents.

 

Chapter -11       

       

11.1 Criminal behavior: Bangladesh Perspective:

 

Our society create large disparities between rich and poor, or high or low social classes. The very fabric of the present day Bangladeshi society

is underpinned by the imbalance in distribution of wealth in our society. The disparity of wealth between the ‘high’ and the ‘low’ classes  in our society is becoming more prominent in the course of the time due to multiple factors, including lack of political direction, aggressiveness of the unbridled global market economy and our incompetence in implementing relevant national policies. As a result, in our country a large part of our population are living under extreme poverty. Inevitably, the underprivileged sometimes are constrained to resort to criminality either to escape miseries and disgrace or to satisfy their basic needs. In our society, crimes are committed for two causes: lack or absence of wealth as well as surplus wealth. Prostitution, gambling, drug abuse and drug trafficking are natural consequence of such structural difference in our society. On the other hand, the persons belonging to the privileged class, such as businessmen and industrialists quite often resort to white-collar crimes and other illegal methods for their personal gain. Bribery, corruption, tax evasion, black-mailing and speculation are common among such persons in our high-society; there are also crimes instigated by politician.  The politicians also seek the help of notorious offenders and antisocial elements to accomplish their political ends. They very often violate the codes and ethics of their party particularly at the time of polls. They indulged in all of tactics and malpractices which are prohibited under the elections laws. Obviously such conduct on the part of political leaders has an adverse effect on the youth who tend to follow the same course of conduct to achieve success in their pursuits. This trend is well illustrated by the tension that prevails among the rival groups of students who contest elections for any office of the college or university unions. All sorts of unworthy means and foul tactics are adopted in fighting these elections. After the results are announced, there is face to face fight and the winning candidate is subjected to threats and assault by the defeated group. It needs no mention that these tactics are followed by the student because they observe the political leaders also resorting to similar tactics at the time of general elections. It is common knowledge that political leaders themselves are patronizing the students to fight elections in educational institutions on party lines. Recent rise in crime may also be analyzed as motivated by religious fundamentalism. One of the causes behind such rise is the substandard curriculum of Madrasa education system. Very often the poor in our country go to madras for education. The text-books of the Madrasa system contain inadequate information. The students almost invariably fall victims to political use. As a result they get diverted to terrorism and other criminal activities. Given the global political situation, it has become very easy to motivate people who have delicate feelings for their religious fraternity by reference to exploitation of Muslims elsewhere in the world by political superpowers. As a result they become vulnerable to ideas of terrorism and crimes in the name of religion. It is also true that these religion forces are also driven by ulterior motive to occupy state power in the domestic sphere.

11.2 Concluding Remarks:

Crime has a baffling problem ever since the draws of human civilization and main effort to grapple with the problem have only partially succeeded. There is hardly any society which is not beset with the problem of crime and criminality. it must be stated that today crime is one of the significant problems all over the world.

The rapid change of social, economic and politics has created multiplicity of crimes. So the problem of crime and criminal behavior as challenge to “new era of penology”. Now new crime has posted positive danger to human life, liberty and property. For eradication of crimes from society and rehabilitation of offenders as law abiding members of the community the following steps should be implemented:

  • The offender is essentially a human being. Therefore greater stress should be industrialization of the offender for his reformation. Reformation of criminals through clinical approach should be accepted which is the cardinal principle of modern penology.
  • The object of imprisonment ought to be to bring as to prisoners re-socialization through the process of rehabilitation.
  • There is greater need for legislative participation in the shaping of correctional policy and subjection of correctional theory and practice to rule of law in the administration of criminal justice.
  • Control of delinquency implies ecological interpretation of sociological problems. So in order to hold in check the incidence of crime, the conditions inductive to criminality must also be kept under control.
  • The criminal law procedure should be amended so as to eliminate needless arrest and detention of suspected offenders. Persons should be detained in custody only when absolutely necessary.
  • The criminal law should not allow any disparity in trial or sentencing on the basis of social status of the offenders.
  • Educational institution should be adopted crime prevention program in their curriculum; as a result students are aware as to delinquency.
  • While planning out strategy for crime prevention, it must be borne in mind that human nature is complex and no one can possibly comprehend it fully. It has how ever been realize that all human being do not respond to a given situation in the similar manner because of there varying socio-economic, psychological and environmental ratification. It, therefore follows that all the offenders can not be treated alike.
  • Beside the preventive measures the criminal justice system should be provide given respect to the plight of victims of crime and at the same time society should be provide social support which is very necessary.

The control of crime to be successfully tackled the incidence of criminality need to be addressed from all sides. Mere policing would not yield the desired results unless followed by community involvement, support from victim and changing deep rooted attitudes, like relative deprivation by providing jobs, housing and other community facilities to the deprived sections of the society.

 

www.lawcommissionfindia.nic.in

The journal of peasant studies,vol 18.     Women’s studies international forum, vol-14.

Bibliography

 

1. Paranjape N.V prof.  “Criminology and Penology” (central law publications, 2005)

2. Siddique Ahmed, “Criminology” (Eastern Book Company), fifth edition   2005

3. AdlerFreda, Luther Williams & Mueller Gerhrd O.W.”Criminology”(MC Graw-hill Inc) 1991

4. Territo Leonard, Chamelin Neil C, Swanson Charler. R, “Criminal investigation” (The Mc. Graw-Hill co Inc.) Sixth edition 1988

5. Gaur K.D. “Criminal law and criminology”(deep and deep publication, Delhi) edited 2003

6. Kenny      “Outlines of Criminal Law “17 th editions

7. Rubin Sol, “Crime &Juvenile Delinquency”(New York)1958

8. P J Fitzgerald, “Salmond on Jurispudence” (Universal Law Publication Co. Pvt. Ltd) 12th edition 1966

9. Garner Bryan,   “ Black’s Law Dictionary” (West Publishing Co.) Eighth edition, 1990

10. Vold G.B. “Theoretical Criminology” (Oxford University Press, 1997)


1Coke’s Institutes, Part III (1797 edition) chapter 1, folio 10.

[2].Elizabeth A. Martin, ed. (2003), Oxford Dictionary of Law, Oxford: Oxford University Press, ISBN 0198607563

 

[3]  Brent Fisse, “Howard’s Criminal Law” (1990) 12-13.

[4] Albert K. Cohen, “Middle- Class Delinquency and the Social Structure,” in Middle class Delinquency,ed.E. W. Vaz, pp.207-221(New York: Harper & Row, 1967)

 

[5] Freud sigmond: ageneral introductions psycho-analysis (1935) translated by john riviere (New York) p.232.

 

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