Criminal Liability for Rape, Murder and Grievous Bodily Harm - Essay Example

? Criminal law By of 2966 Words Introduction The law that deals with crimes is referred to as criminal law. The shapers and foundations of criminal law are the numerous social standards and conducts set in different jurisdictions. This definition implies that criminal law seeks to control peoples’ conducts in society and criminalise actions and omissions that may threaten, endanger and harm others’ well being, safety, security and mental and physical health1. For people who breach any of the laid down criminal laws of a given jurisdiction, the consequences are often commensurate legal punishments such as jail terms. Unlike civil law which focuses on resolution of disputes and compensation, criminal law emphasises punishment for convicted offenders2. Because of the severity of the effects of some convictions on perpetrators, judges always want proof of the intent to commit a crime on the part of a defendant. This intent or guilty mind is referred to as mens rea. Thus mens rea and actus reus are the two core requirements that must be present at the same moment for a successful conviction. In other words, a criminal case cannot stand strong if mens rea and actus reus occur at different times, even if sequentially. On the other hand, strict liability refers to the criminal liability faced by a defendant, regardless of mens rea3, i.e. where it is absent. This paper explores the statement that “Theft and Fraud are both serious crimes, but they can never be the basis for any type of manslaughter conviction, even if the victim dies.’ In addition, the paper explores the criminal liability related to murder, rape and grievous bodily harm. Theft and Fraud Can Never Be the Basis for Manslaughter The statement ‘theft and fraud can never be the basis for manslaughter’ has been debated for quite some time by both students and law professionals. In many instances in this debate, a distinction is often made between basic intent and specific intent crimes. In basic intent crimes, the mens rea is intention or recklessness that does not exceed the actus reus. In other words, in a court of law, such as defendant must not have foreseen the consequences or harm that exceeded the laid down definition of the actus reus4. Taking the offence of criminal damage as contained in section 1(1) of the Criminal Damage Act 1971), the actus reus entails the damage or destruction of another person's property5. Thus, the mens rea in this case does not require exceeding an intention to commit criminal damage. In a specific intent crime, a suspect’s mens rea exceeds the actus reus. This implies that such a defendant had certain ulterior motives in mind. For an illustration, in the case of aggravated criminal damage contrary to section 1(2) of the Criminal Damage Act 1971, this offence is committed if a defendant damages or destroys a property while all along intending to endanger life6. Examples of basic intent crimes include common law theft, fraud, assault, battery, manslaughter, rape and criminal damage while specific intent crimes are unclear offences, murder and criminal damage with intent to endanger life. The reason theft and fraud cannot form the basis for manslaughter is that the actus reus of the two crimes are not similar to that of manslaughter. For example, the actus reus of theft is the illegal taking, keeping and/or using of another person's property. This actus reus is accompanied by the mens rea of permanently intending to deprive the rightful owner the possession or use of a property. That is, if one party mistakenly takes the property of another, thus depriving the owner of the use and possession of the property (the actus reus), it does not amount to a crime since the former mistakenly takes the property, believing he/she is the rightful owner. However, if he/she realizes the mistake but does not take the earliest opportunity to return it to the rightful owner, it becomes a crime at this point7. There is thus, the element of dishonesty in the latter scenario. The English law identifies five core elements of theft in the Theft Act 1968, namely; dishonesty, appropriation, intent to permanently deprive the other of rightful use and possession, possession by the other and property8. In all these elements, nothing relates to manslaughter or threats or danger to the life of the owner of the property to be stolen or defrauded. The English law differentiates murder and manslaughter, the latter being considered less serious than the former. The core difference is the extent of liability on the basis of an offender’s guilty mind. Although it is the preserve of the judges to decide whether a suspect is guilty of murder or manslaughter, most prosecutors instigate murder charge so that in case of weak evidences, a judge may consider manslaughter. While life imprisonment is often mandatory if murder is proved, sentence on manslaughter is often at judges’ discretion. There are two types of manslaughter: voluntary and involuntary. These types of manslaughter depend on the acquisition of mens rea for murder by an accused. In English law, as seen in the R v Creamer9 case, one is guilty of involuntary manslaughter or constructive manslaughter if he or she intended to act unlawfully via actions that were likely to harm another person, which resulted in unintended or unforeseen death. Despite the fact that an accused person might not have foreseen or intended the risks or the serious harm or death caused, his or her responsibility for such death is based on the fault in the commission of a seemingly minor criminal act. Since fraud is an intentional dishonesty or trickery undertaken for personal gain or damages to other people and theft is the taking of another individual's belonging without his or her consent, to dispossess the legal owner of it, there is no mens rea or actus reus related to manslaughter in these two crimes. Theft and fraud cannot therefore form the basis for involuntary manslaughter, which is the illegal killing of another person minus expressed or implied malice aforethought. Unlike voluntary manslaughter, involuntary manslaughter lacks intention. In other words, one might intend to commit a crime without the intention of endangering or taking the other’s life. However, in the process of committing a crime, some error of omission or commission occurs, resulting in the endangering or ending of another’s’ life. As mentioned earlier, involuntary manslaughter is divided into constructive manslaughter and criminally negligent manslaughter. These categories result in criminal liability for the accused. Since constructive manslaughter is also known as unlawful act manslaughter, it can be built on the principle of constructive malice. In this doctrine, the malicious intentions of an offender in the commission of a crime are applied on the effects of the crime committed or the omissions therein. In other words, the criminal mind used in a robbery or other such crimes that endanger others’ lives are relocated to the killing, resulting in manslaughter charge. Examples of situations in which theft can be viewed to form the basis for manslaughter abound. For instance, a person may be found stealing by the owner of the property in question after which the offender pushes the owner who then falls and dies. Such a crime ceases to be theft and becomes robbery since the owner is now present at the scene and the offender is likely to resort to use force. Hence, in such instances, a judge’s decision may be based on the use of excessive force by the offender or other factors. As in the DPP versus Newbury10 case, such an offender has no intention of killing the owner. Hence, the resultant death cannot be considered murder but an involuntary manslaughter. Criminal Liability for Rape, Murder and Grievous Bodily Harm The broader definition of rape encompasses two types of the offence; penetrative and non-penetrative rape. In many a jurisdiction, rape as a crime has quite different definitions and terminologies included therein. For instance, while some jurisdictions regard rape simply as a sexual offense, in others, rape is a crime against an individual. Still, in some jurisdictions, rape is a type of battery or an exacerbated and indecent assault. In all these cases, sustaining a rape cases often requires the defendant to prove carnal knowledge and sexual penetration during the act. Thus, rape has certain actus reus associated with it. These actus reus include existence of carnal knowledge and engaging in sexual intercourse with the victim who could be female, male or hermaphrodite. Sexual penetration is the other actus reus of rape. This penetration could be of the penile penetration of the victim’s genitalia, including the vagina, anus and mouth. In this case study, the offender might have committed either of these types of rape, depending on the time of arrival of the victim’s husband. Generally, rape refers to sexual intercourse or penetration of another without his/her consent, or if with consent, the consent is obtained through threats, false presentation or intimidation11. According to the United Nations Office on Drugs and Crime, rape is simple sexual intercourse or carnal knowledge without valid consent. Hence, the most critical aspect of a rape case or allegation is the proof of absence of sexual intercourse consent from the victim12. In fact, as in the case of Guinevere, consent was neither expressed nor implied. In addition, consent could not be established or derived from the relationship between Guinevere and Lancelot, which was not close. Similarly, absence of objection cannot be used to imply consent to sexual intercourse. The rape case against Lancelot is strong since Guinevere protested Lancelot’s attempts to proceed with the act. In addition, the victim might have suffered profound duress, threats and force of violence, implying lack of consent from Guinevere. Thus, Lancelot is responsible for raping Guinevere. The other offences for which Lancelot could be held responsible are manslaughter and murder, if Guinevere had died from her ordeal. By muffling his victim’s mouth so that she does not shout for help, Lancelot might have committed involuntary manslaughter or murder. Although the prosecution may opt for murder charges, it remains the discretion of the judge to decide on murder or manslaughter depending on the mens rea and actus reus involved. By physically attacking his wife and causing her death, Arthur may be held responsible for the murder of Guinevere. If he is lucky, he might argue that he did not intend to kill his wife and face manslaughter charge. Murder entails another person of sound mind, memory and discretion illegally killing another with implied or expressed malice aforethought. In this case study, Arthur’s actions have all the elements of murder as contained in common law. These elements include killing, unlawfulness, a human victim, a human perpetrator and malice aforethought13. With regards to unlawfulness, Arthur does not have the excuses of justified self-defense, an execution or the killing of an enemy soldier as provided for within the boundaries of certain jurisdictions14. According to common law, killing is caused by actions and omission that interrupt the proper and optimal functioning of a person’s blood circulation and respiration. In this case study, Arthur caused Guinevere’s blood circulation and respiratory systems to cease to function by slashing her with his sword, preventing her blood circulation and breathing system from operating normally. The four states of mind that constitute malice aforethought as contained in common law were present in Arthur as he attacked both Guinevere and Lancelot with the sword. These states of mind include intent to kill, intent to inflict grievous bodily harm on his victims, recklessness, unjustified risk to human life and intention to commit a dangerous felony. Arthur’s actions could be compared to a situation in which Lancelot may have caused Guinevere’s death by trying to muffle her noises15. The charge that Lancelot is likely to face is that of causing grievous bodily harm to Arthur. In English criminal law, grievous bodily harm falls under sections 18 and 20 of the Offences against the Person Act of 1861. While section 18 contains crimes to do with specific intention of wounding others or causing grievous bodily harm, section 20 deals specifically with illegal and malicious infliction of bodily harm or wounding. Lancelot is guilty of inflicting bodily harm on Arthur by unlawfully and maliciously wounding and causing grievous bodily harm on him. Section 18 of the Offences against the Person Act of 1861 goes ahead to define grievous bodily harm as characterised by intent to resist or prevent lawful arrest or detention16. According to this Act, Lancelot is liable to be found guilty of a felony and could be convicted accordingly. He is also liable to face bodily harm charges since his actions are contrary to section 20 of the Act, which considers a person who unlawfully and maliciously wound and cause grievous bodily harm on others with or without a weapon or an instrument guilty of a misdemeanor. In this case study, the effects of Lancelot’s actions on Arthur amount to wound, as defined in medical disciplines. In general, a wound refers to an injury that causes a break on the continuity and stability of the skin. Thus, for grievous bodily harm charges against Lancelot to stand, there must be evidences of a breakage of the victim’s whole skin. It is worth noting that a mere division of the cuticle or upper layer of the victim’s skin would not work in favour of the grievous bodily harm charges. If there is a drop of blood, grievous bodily harm would only stand if such blood fell outside the victim’s body as shown in the case of JJC (a minor) versus Eisenhower (1984) 78 Cr. App. R. 4817 in which a victim was fired by a pellet gun. In this incident, the bullet ruptured the victim’s blood vessels around the eye, filling the eye with fluid. While giving his judgment, Lord Justice Robert Goff argued that since the victim’s blood vessels were ruptured and bleeding occurred, it implied the wound was internal and whole skin was broken. Thus, a wounding charge was warranted. That is, if a victim suffers a bruise, an internal rupture of blood vessel or a broken bone, wound charges cannot stand18. It is also worth noting that wounding does not only apply to situations where a weapon has been used; instead, even a mere kick or slap may be wounding. Whether Lancelot faces charges of grievously causing bodily harm on Arthur also depends on the severity of the bodily harm caused. This provision is shown by the DPP versus Smith [1961] AC 290,19 R versus Cunningham [1982] AC 566,20 R versus Brown (A.) [1994] 1 AC 21221 cases. It is important to note that omissions can also result in grievous bodily harm charges. As was in the case of R versus Gibbins and Proctor [9],22 one’s decisions and omission that cause grievous bodily harms can be used to proffer charges against him or her. References C (a minor) versus Eisenhower [1984] QB 331 (1984) 78 Cr. App. R. 48 CMV Clarkson. Law Commission Report on Offences against the Person (1994) CLR 324. Criminal Law Revision Committee Fourteenth Report (1980) Offences against the Person (London: HMSO) Cmnd 7844. D. Ormerod. Smith and Hogan's Criminal Law, thirteenth Edition. Oxford University Press. (2011) DPP versus Smith [1961] AC 290, G Williams, Force, Injury and Serious Injury NLJ 7/9/90 GP Fletcher. Basic Concepts of Criminal Law. Oxford University Press. (1998) HLA Hart. Punishment and Responsibility. Oxford University Press. (1998) JJC (a minor) versus Eisenhower (1984) 78 Cr. App. R. 48 Law Commission Consultation Paper No. 177, a New Homicide Act for England and Wales R Cross. Statutory Interpretation, third edition. Oxford: Oxford University Press. (1995) R versus Cunningham [1982] AC 566, R versus Gibbins and Proctor [9] The Coroners and Justice Act 2009 (Commencement No. 4, Transitional and Saving Provisions) Order 2010 (S.I. 2010/816 (C. 56)) The Criminal Justice Act 2003, section 163 The Criminal Justice Act 2003, sections 227(1) and 228(1) (a) and (b)(i) The Offences against the Person Act 1861 (24 & 25 Vict. c.100), section 20; as amended by the Criminal Justice (No.2) (Northern Ireland) Order 2004 (SI 2004/1991 (N.I.15)), article 4(1) Read More