It is a firmly established principle of criminal justice that there can be no liability without fault. The element of fault as a requirement for liability rests upon the moral and ethical view that only persons who are deserving of blame ought to be punished. Fault may be committed either intentionally or by negligence. Intention consists of deliberate criminal conduct while negligence consists of accidental criminal conduct. There are three forms of intention and two forms of negligence. The aim of this paper is to discuss one of these three forms of intention known as dolus eventualis or indirect intention.
[...] For example, in a situation of culpable homicide, had the accused realized his mistake by thinking seriously, reasonably and sufficiently about the matter, he would have refrained from acting. Professor Fletcher writes that conscious negligence involves an affirmative aversion to the harmful "side-effect". He states that the best way to state the distinction is to employ a contrafactual conditional. If the actor knew the side effect was going to occur, would he act in the same way? If yes, then the actor is reconciled to the side-effect, hence he had intention in the form of dolus eventualis. [...]
[...] Likewise, if he proceeds, the judge will have to know what was his mind's state (volitional element) about the foreseen possibility. If he did not care or quite happily accepted that the forbidden consequence may be the result of his or her action, there is dolus eventualis, if he “believed” that “nothing will happen”, there is no dolus eventualis. In both cases there are two distinct phases before the action was taken: foresight of a possibility, and what was the state of the mind (volitional element) towards that possibility. IV. [...]
[...] Two components of dolus eventualis There are two requirements for the existence of dolus eventualis. The first is that ‘X' should foresee the possibility of the result, and the second is that he should reconcile himself to this possibility Dolus eventualis: foreseeing the result This requirement deals with what the accused conceives to be the circumstances or results of his act. Intention in the form of dolus eventualis relates to circumstances or consequences which the actor does not plan or desire but which, in the light of human experience, can be expected to follow if the actor proceeds with a planned course of action. [...]
[...] Morkel, "On the Distinction Between Recklessness and Conscious Negligence", (1982) 30 American Journal of Comparative Law George P. Fletcher, "The Theory of Criminal Negligence: A Comparative Analysis", (1971) 119 University of Pennsylvania Law Review Hans-Heinrich Jeschek, "Droit pénal" in Michel Fromont and Alfred Rieg, Introduction au droit allemand-République fédérale, Tome II: Droit public - Droit pénal, Paris, Éditions Cujas Law Reform Commission of Canada, Omissions, Negligence and Endangering, Ottawa: The Law Reform Commission of Canada Taylor “Concepts of Intention in German Criminal Oxford Journal of Legal Studies, vol no 1. [...]
[...] Mistake of fact, if honest and unreasonable, does negate dolus eventualis but not negligence. With conscious negligence, the actor makes a mistake by concluding that the unlawful result will not occur. A mistake in cases of negligence does not eliminate the offence, since the essence of negligence in these cases is having made that unreasonable mistake. As Professor Williams has stated: "Where the crime requires gross negligence the mistake to justify conviction must be grossly unreasonable". Bibliography I. Books 1. [...]
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