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is universally regarded as tantamount to the commission of the crime "intentionally”. We suggest that no particularly useful purpose seems to be served by utilizing two terms in the draft code where one could do.
2. Significance of forms of culpability: We are now turning to the second paragraph of your question number three. There is a vast literature in continental countries on the topic of that question, the relevance of the differentiation between more and less intense attitudes toward the harm created, as measured by intention, recklessness or negligence, does play a significant role in a number of contexts in all continental countries :
(1) The basic requirement in most penal codes of the world is that of $302 (2) namely, that intentional or willful commission of the harm is necessary and that the intent must, indeed, cover every element of the crime. Consequently, where there is no such intent or willfulness, the defendant will not be held liable for the commission of the harm. In this sense then, the absence of intention amounts to impunity. This is expressed by the Latin American Model Penal Code, Article 24, which pretty well codifies the law of most Latin American countries.
(2) In all foreign penal codes, the form of mens rea is used to determine the degree of guilt. Thus, universally the intentional production of the harm is threatened with more severe punishments than the negligent production of the harm. Nota bene, that recklessness, as previously stated, is not a commonly used form of mens rea in continental countries. A high degree of risk-taking with respect to the production of the harm, and a prospective approval of the harm on the part of the actor, should the harm follow his reckless conduct, is regarded as tantamount to an intention in virtually all civil law countries (this is the socalled dolus eventualis).
(3) The state of the defendant's mind is also taken into account for the purposes of sentencing. The intensity of the defendant's desire to produce the harm is regarded as aggravating or mitigating circumstance, particularly in crimes where the defendant's emotions have played a significant role, for example, in crimes of passion. Many foreign codes, especially those Latin American ones having their origins in the Spanish codes of the last century, deal separately with mitigating and aggravating circumstances. In effect this amounts to saying that a mere intent, recklessness or negligence alone is never quite adequate to measure the crime or to assess the perpetrator. What is needed is an additional evaluation of motivations. While American law supposedly refuses to consider the defendant's motives and motivations at sentencing motives and motivations do, in fact,
play a significant role as well. 3. Awareness of wrongdoing—the essence of culpability: The "forms” of "culpability” are quite sensible, and in particular, the requirements of $302(2), that willfulness is required unless some lesser form of culpability is specified, is quite in accord with the best thinking all around the world. What is disturbing about the requirement of culpability is the provision of $302 (5) to the effect that, unless otherwise provided, “knowledge or belief that conduct is an offense is not an element of the conduct constituting the offense." It has been fundamental throughout this history of Anglo-American Criminal Law, as well as Continental Criminal Law, that criminal liability is imposed on persons who commit a wrongful act knowing that they are doing something wrongful, in other words, acting with "an awareness of wrongfulness."
The very idea of exculpation based on the existence of mental illness rests on freedom from liability of those who could not harbor an awareness of wrongdoing. Likewise, when it comes to the exculpation of persons laboring under a mistake of fact, only those are exculpated who by reason of the mistake had no awareness of wrongdoing. Consequently, the provision of subsection (5) of $302 is inconsistent with the basic commitment of Anglo-American as well as Continental Law, namely to punish only guilty parties.
Moreover, $302(5) is also inconsistent with the provision of $304 to the effect that "a person does not commit an offense if, when he engages in conduct, he is ignorant or mistaken about a matter of fact or law and the ignorance or mistake negates the kind of culpability required for commission of the offense." Section 304 is a superb provision, in line with the most established thinking on the European continent, to the effect that anybody who labors under such a mistake that he does not recognize wrongfulness of his act, whether due to an error of fact or law, should not be held guilty. When a person labors under a mistake of fact or law with respect to his right to commit & homicidal act, he is not intending to commit the wrong of a criminal homicide, even though he may be intending to cause the death of a human being.
The matter can be easily remedied by striking subsection (5) of $302 of the Draft Code. This would be totally in accord with established Anglo-American Criminal Law. When the rule was framed that ignorance of law is no excuse, the common law of crimes was restricted to those offenses which were universally known to be wrong. Consequently, nobody could be heard to maintain that he was unaware of the law outlawing the conduct in question. Consequently, it was true at common law that every intentional or knowing commission of an offense included within it the idea that the perpetrator was aware of the wrongfulness of his action. Liability was excluded when the awareness of the wrongfulness of action was wiped out either by mistake of fact or by mental illness, or some other such cause.
As a matter of comparative law, it is interesting to note that the Supreme Court of the German Federal Republic in a fundamental decision of March 18, 1952 ruled that every case of criminal liability requires the awareness of wrongdoing. Criminal liability cannot be imposed unless the defendant was aware that he was doing something wrong, or, in the case of a crime committed by negligence, that the defendant was under an obligation to investigate the potential wrongfulness of his action.
4. Exculpation in case of lacking awareness of wrongdoing : In the preceding sub-section I have already moved into the question of exculpation due to lacking awareness of wrongdoing. This question is inextricably interwoven with criminal intent and negligence. Theoretically, most foreign penal codes subscribe to the same theory which we supposedly have in America, to the effect that ignorance of of criminal law is no excuse. But nearly all legal systems provide a much more pragmatic answer to the question of mistake or ignorance of law. While in nearly all systems, including ours, mistake of private law has always been regarded as a defense, and while, indeed, there are decisions in virtually all countries, including ours, that absolutely invincible ignorance of the law serves as a defense, there is a growing realization all over the world that in this modern day and age, with its proliferation of regulatory statutes, it is no longer possible to administer a system of criminal justice justly, which does not allow for excusable and explainable ignorance of certain regulatory penal laws. Consequently, there is a growing recognition that where the awareness of wrongdoing is dependent on knowledge of a given prohibition, and there is error or ignorance in this regard, the criminal intent of the actor is missing. Among others, this is now recognized in the Latin American Model Penal Code, Article 27, and in the new version of the German Penal Code, Section 17, which reads as follows:
$14_Error of Law
If the perpetrator while committing the act lacks the awareness that he is doing something wrong, he acts without guilt if the error is not attributable to his own fault. If the perpetrator could have avoided the error, his punishment may, nevertheless, be reduced in accordance with $49(1).
(Section 49 provides for considerable mitigation of sentences under special circumstances.) While it is not customary in foreign penal codes to combine mistakes of fact and law in one section, we think that $304 in combining error or mistake about a matter of fact or law is well-drafted and understandable. Its succinctness is particularly praiseworthy. In our view, however, $302 (9) falls out of the pattern and is totally inconsistent with the contents of $304. 5. Mistaken belief in the existence of exculpating circumstances : Similarly, $303 is quite inconsistent with the general principle embodied in the penal codes of the entire world—including our own—that where there is no awareness of wrongdoing, criminal punishment would be misplaced. As being in fundamental conflict with $304, $303 should be stricken. The matter of mistake is fully covered by $304.
As regards the shifted burden of proof of $303, all codes of the world, exrept ours, treat mistake of fact pertaining to the existence of a defense in the same manner in which other mistakes of fact are treated. In view of the fact
that Anglo-American law does have the institution of affirmative defenses, a concept which does not exist in civil law countries, it may be justifiable to put the burden of proof on the defendant when he claims that he erroneously assumed the existence of facts which permitted him to exercise one of the defensive measures authorized by law. But it is inconsistent even with American theory of law to state flatly that mistaken belief in the existence of an affirmative defense it not a defense unless otherwise expressly provided. Section 303, therefore, is totally inconsistent with $304 and ought to be revised.
6. Mistaken law vs. mistake of law: Moving on to $610, which is called "Mistake of Law", we have difficulty reconciling $610 with $304. It occurs to us that 304 says everything there is to be said about mistake of law. Section 610 is not needed, since 304 covers all situations but one mentioned in $610. And that one is $610(d), which excuses an illegal act committed in reliance on an official interpretation of the law by a public servant or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the crime. Under those circumstances, it is not the defendant at all who acts under a mistake of law, but rather it is the public servant or body interpreting the law that is mistaken. Under those circumstances, we have the classical case of a mistaken, but nevertheless, positive law. According to proper theory even in the United States (espoused by Jerome Hall and others) it is then the law which is wrong but not the actor. Consequently $610 is not needed for that particular point either.
7. “Marginal transgression of limit of justificiation": As regards “marginal transgression of limit of justification”, the language used is extremely difficult to comprehend. We would propose a solution like that contained in $53(3) of the current German Penal Code "excessive self-defense or defense of another is not punishable if the perpetrator has exceeded the limits of defense by reason of consternation, fear or fright." These words are clear and stick to the mind and memory of the persons addressed, and allow reasonable interpretation of a myriad of conceivable fact situations that may come before judges.
8. Concluding remarks on mens area provisions : The specific drafting of the mistake provisions, except for $304, is not particularly skillful and could certainly be improved. To some extent it leaves holes. For example, under $609 a person who acts in a mistaken belief that he engages in justifiable conduct may nevertheless be found guilty for the negligent or reckless commission of the crime he has committed if his mistake was due to negligence or recklessness. But $609 is silent with respect to the situation where the negligent or reckless commission of the crime is not provided for. What is to be the rule under those circumstances? Should there be a mitigation of punishment? Should the mistake be immaterial? Either of those two solutions have been adopted in different states.
The drafting of the various provisions dealing with mens rea aspects shows differential talents on the part of the various draftsmen, lack of coordination, and inadequate agreement on fundamental premises. All relevant provisions should be resubmitted to the drafting committee with the provisio to redraft all provisions, consistent with the basic premise—superbly stated—of $304, and the basic form requirements of $304, and the basic form requirements of $302 (excepting sub (5) which is inconsistent).
Q.4. The proposed Federal Criminal Code includes a section (§ 305) which defines the causation requirement of casual connection which must be proved between the defendant's conduct and the result. How is causation handled by foreign codes?
A. While there are a few foreign codes which have a specific codified causation formula, e.g., Article 40 of the Italian Penal Code, it is rare to put a causation formula into the code. Causation is largely left to the judiciary for determination. There are probably as many causation formulas in existence in the world as there are scholars who have thought about the problem. It may be doubted whether a code will succeed in imposing a formula. The Federal Draft Criminal Code in $305 has adopted the "conditional" theory of causation. The formula of the Model Penal Code, $2.05, likewise rests on that theory and has been criticized as too stringent. I, myself, would advocate any one of a number of broader formulas, as I have explained on the basis of a largescale comparison of foreign law in my essay “Causing Criminal Harm," of which I am including a copy for the Committee's use.
If the causation formula of $305 is to be retained, I would urgently propose
() be contained in $302 (3) (b) to the effect that it conduct is an offense if it causes a particular result, the required kind of culpability is required with respect to the result." That provision pertains more to causation than it does to culpability, although, of course, the two hang intimately together. In general, however, it is fair to say that provisions on causation will be rarely used, have limited practical value in making sure that causation requirements have as their purpose, after all, the proof of a connection between the mind of the perpetrator and the result he has produced.
0.5. The Draft proposes that mental disease or defect at the time of the criminal conduct be a defense and defines that defense in proposed $503. 18 there any insanity defense to criminal charges under foreign codes? How do the foreign provisions compare with that of the Draft Code? Do any foreign codes provide that the insane defendant may be found guilty, but that upon conviction he must be accorded medical rather than penological treatment? How do they handle the procedural aspects of the insanity defense; is there provision whereby the Judge selects a psychiatrist to examine the defendant or do both the government and the defense lawyers bring in their own medical witnesses ? Is there prorision whereby the defendant found not guilty by reason of insanity is automatically committed to a mental institution for observation and treatment?
A. Mental disease or defect is a “defense' in all penal codes of the world. It must be explained immediately, however, that the idea of a defense—in the nature of imposing a burden of proof-does not exist in any of the continental countries. When the suspicion of mental illness exists, or the potential existence of mental illness on the part of any defendant has been raised by anybody, it becomes the obligation of the judge presiding (or the arraigning magIstrate) to take the necessary steps for the investigation of that fact question, which may or may not include preliminary hospitalization for purposes of tests. There is no burden of proof on the part of anybody to establish mental Mness.
When it comes to the test itself, $503 is the formula used by the German Imperial Penal Code of 1871, which, in turn, was copied from the Prussian Penal Code of 1851, where, in fact, this particular test originated. It was the first "functional" test in European countries. All other tests, primarily those based on the French Penal Code of 1809, simply referred to the existence of *madness" as excluding liability.
It may be doubted whether in 1972 the defense of 1851 still is entitled to the same prominence, although it should be added immediately that in most countries whose penal codes are not based on that of France, the test of $503 is still substantially in effect, for example, in the Swiss Penal Code, and most prominently in the German Penal Code $51.1. It should be noted immediately that as $503 and its Europan counterparts are phrased, it exculpates only for that kind of a mental illness which deprives the defendant of his capacity to form the requisite mens rea (“substantial capacity to appreciate the criminality of his conduct, or to conform his conduct to the requirements of law"). Where the mental illness is of a slightly different kind and renders a person incapable to engaging in voluntary conduct, then under $301 of the Draft Penal Code a different rule of evidence would seem to apply, and the defendant merely has to go forward with evidence indicating that his mental illness deprives him of the capacity to engage in voluntary conduct. Query, was that intended? Would it not be preferable to have the same evidentiary requirement regardless of whether the mental illness deprived the defendant of the voluntariness of his conduct or of his mens rea? If it were to be regarded as desirable to have the same evidentiary test applicable regardless of the impact of the mental illness, then I would urgently propose to heed the advice of now Chief Justice Warren Burger, given in Campbell v. United States (307 2d 397, 1962) :
“The precise words to be used .. are not too important so long as the charge conveys an explanation of the product test in terms that make clear that it is directed to exculpating: (a) those who do not understand what they are doing, (b) those who do not understand the unlawfulness of what they are doing, and (c) those who cannot control their conduct even when they know it to be unlawful.”
The test adopted in the Missouri Revised Statutes, Supp. 1963, $552.030.1 would seem to meet this precise requirement :
“A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect, he did not know or appreciate the nature, quality or wrongfulness of his conduct, or was incapable
of conforming his conduct to the requirements of the law." This test is, in fact, an extreme modernization of the McNaughton test with which it shares the logic of exculpating equally all those incapable of fulfilling the necessary actus reus requirements ("knowing or appreciating the nature and quality of the act”) as well as those incapable of fulfilling the necessary mens rea requirements ("knowing or appreciating the wrongfulness of the conduct"). It has the additional advantage of spelling out what was only vaguely implicit in the old McNaughton test, namely, that persons who act under a psychopathological compulsion so that they are incapable of fulfilling the necessary intent requirement of the act ("conforming his conduct to the requirements of law") are likewise exculpated.
In our search of European and Latin American penal codes, we have found no formula which is as comprehensive, as logical and as succinct as the Missouri formula.
But, the matter does not end there, since we feel obliged to call attention to the fact that the more modern European penal codes frequently have made the same discoveries that have been made in a number of states recently, namely, that mental and emotional disease, disorder or defect does not divide mankind into two parts, the sane and the insane, but rather that there is a large group of persons situated somewhere in the middle, who act under what might be called diminished responsibility. Thus, the Swiss and German penal codes have the following provision ($51.2 of the German Penal Code):
"If the ability to appreciate the unlawfulness of the deed or to act in accordance with such appreciation was substantially impaired at the time
of commission, for one of these reasons, the punishment may be lowered ..." Procedurally what happens is that when a person is found to have committed the act with diminished capacity, he may be sentenced to a very much miti. gated term of confinement, or he may be institutionalized for the purpose of treatment, or both may be done in succession, although frequently there simply is a confinement in an institution for treatment, after which the defendant is discharged if he is no longer a danger to himself or others. We would strongly urge that the Federal Penal Code follow the trend of modern legislation by recognizing the existence of persons who act with diminished responsibility, by insertion of a provision which will lower the blame, lower the punishment, and substitute more appropriate treatment for persons acting with such diminished responsibility.
Where, of course, a defendant is found completely exculpated by reason of mental illness, so-called measures of "safety and rehabilitation" may be imposed. These measures, however, do not automatically follow an acquittal by reason of “insanity”. (Technically, there is such a thing as an "acquittal" in European countries). Institutionalization, following an "acquittal," can be had only if the judge, upon trial, finds that the public safety requires institutionalization in an institution for cure or care. Occasionally a code will also provide that institutionalization may not be ordered where the acquittal by reason of mental illness was of a petty misdemeanor charge (see $42(b) German Penal Code ; for the most advanced provisions, see Article 99-110 of the Polish Penal Code of 1969).
The remaining questions under point 5 are of a procedural nature and are in foreign penal codes treated almost entirely in the codes of criminal procedure. In summary, it may be said that since, as previously explained, it is the obligation of the judge to determine whether a defense of insanity will lie, it is ordinarily the judge who will appoint one or several experts who will make the defendant's examination. Almost universally a defendant has a right to presence of his own psychiatrist. Some codes have complicated structures for the obtaining of an arbiter's psychiatric opinion, if there is disagreement among the court-appointed and private psychiatrists. A so-called battle of the experts in court is almost entirely unheard of, and it may be surmised that the end of the battle of experts may have arrived even in the United States, if capital punishment is abolished, for it was really only the existence of the potential use of capital punishment which made the issue of "insanity” such a contested one at trial. Moreover, the recognition that all persons placed in a correctional institution require "treatment" no longer makes it all that impor