Approaches to

Understanding Criminal UNIT 4 CRIMINAL RESPONSIBILITY

Behaviour

Structure
4.0 Introduction
4.1 Objectives
4.2 Definition of Criminal Responsibility
4.2.1 Assessment of Criminal Responsibility
4.2.2 Mens Rea
4.2.3 Mens Rea in the Indian Penal Code 1860
4.2.4 Appropriate Age Limits and Criminal Responsibility
4.3 Criminal Responsibility and Mental Disorder
4.3.1 Definition of Mental Disorder
4.3.2 Patterns of Criminality and Mental Disorder
4.3.3 Different Types of Personality and Mental Disorders
4.3.4 Criminal Responsibility and Schizophrenia
4.4 Delinquent Act
4.4.1 Criminal Responsibility and Delinquent Act
4.4.2 Psychopath and Criminal Responsibility
4.5 Insanity
4.5.1 Legal Use of the Term Insanity
4.5.2 Legal Insanity
4.5.3 Incompetency and Mental Illness
4.5.4 Rules of Appreciation
4.5.5 Mens Rea and legal Insanity
4.6 Civil Cases vs. Criminal Cases - Key Differences
4.6.1 Civil Cases
4.6.2 Criminal Cases
4.7 Types of Crime
4.7.1 White-Collar Crime
4.7.2 Blue-Collar Crime
4.7.3 State-Corporate Crime
4.7.4 Organised Crime
4.7.5 Juvenile Sex Crimes
4.7.6 Political Crime
4.7.7 Public Order Crime
4.7.8 State Crime
4.7.9 Victimless Crime
4.8 Factors that have to be Considered in Regard to Criminal Responsibility
4.9 Let Us Sum Up
4.10 Unit End Questions
4.11 Glossary
4.12 Suggested Readings

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 Criminal Responsibility
4.0 INTRODUCTION
In this unit we will be dealing with criminal responsibility which means that
whether a person who has committed the act or perpetrated the crime is responsible
enough to know that whatever he or she has done is legally incorrect, unlawful
and will entail punishment. Whether the person is aware of the crime committed
and was the crime committed with complete awareness and insight and also full
knowledge of the consequences. In what way criminal responsibility is considered
in terms of age, mental health and mental illness etc. Whether a mentally ill
person can be asked to appear in the court and defend self and whether a person
suffering from certain typical problems such as epilepsy can defend self in the
court etc.

4.1 OBJECTIVES
After completing this unit, you will be able to:
• Define criminal responsibility;
• Explain criminal responsibility in terms of age factor;
• Describe criminal responsibility and its characteristic features;
• Analyse criminal responsibility in terms of mental disorders; and
• Elucidate the various factors that have to be considered in regard to criminal
responsibility.

4.2 DEFINITION OF CRIMINAL RESPONSIBILTIY

Criminal responsibility is the fact of being responsible for a crime that the person
has committed. Criminal responsibility applies not only to those who perform
criminal acts but also to those who aid and abet a perpetrator by encouraging or
in any way knowingly helping in the commission of such an act.

The precise definition of criminal responsibility varies from place to place but,
in general, to be responsible for a criminal act implies that the perpetrator must
understand what they are doing and that it is wrong. An individual may not be
considered responsible for having committed a crime if the person is a child who
does not understand what he or she is doing. Let us say two children of age 3
years or so are playing near a bath tub with water and one child pushes the other
child into the water playfully and the other child dies in the process. In such a
case the child cannot be held responsible for the killing of the other child because
both of them were playing and in play without any understanding of the
implications the first child pushed the second and the second child died. Here
there was no intention to kill but just play activity. The age factor thus plays an
important role in criminal responsibility.

Another aspect in which one cannot consider a person responsible for committing
a crime is mental disorder. Let us say a person suffering from paranoid disorder
(highly suspicious when suspicion is not at all warranted) feels threatened by
persecutors and runs for life from those persons. He is so scared of the persecutors
and imagines a person in his office being at the root of it. He is convinced that by

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Approaches to killing that person he could be saved from being persecuted. Such a person who
Understanding Criminal
kills is doing so because of a delusion (false belief) that he is getting persecuted
Behaviour
by villains under the orders of a person in his office. This is a mental illness and
under this condition a person can go and kill another but is not aware of the
various consequences. Hence such a person cannot be held responsible for killing.

In yet another case a person may be hearing voices (auditory hallucinations) to

go and kill Ms.X and he will go and kill that person and come back, least realising
the consequences of his actions. In such cases too the person cannot be held
responsible for committing the crime. Thus on grounds of mental disorder the
person may not be held responsible for the criminal action.

A landmark case occurred in 1843, when Daniel M’Naghten shot and killed the
secretary to Britain’s Prime Minister Robert Peel. The medical evidence found
M’Naghten to be insane. This led to the famous M’Naghten Rule where someone
could evade criminal responsibility if it could be proved that they did not
understand the “nature and quality” of the act they were committing. Equally,
they were not held responsible if they did understand what they were doing, but
did not know or realise that it was wrong.

Persons suffering from a psychosis may be so out of touch with reality that at the
time of the crime, the person may not realise what he is doing and what
consequences such a criminal action will have. Disorders of impulse control
may mean someone is unable to stop himself or herself from attacking someone.
People whose actions and judgment are affected by prescription drugs may also
not be fully responsible. Crimes with no apparent or rational motive may also be
committed by those who are not fully responsible for their actions.

4.2.1 Assessment of Criminal Responsibility

There are a number of issues related to this factor namely the (i) Insanity standards
and the construal of criminal responsibility, (ii) A review of issues related to the
assessment of criminal responsibility, including the structure of these evaluations
(iii) instruments developed to guide these evaluations (iv) the role of delusions
in the evaluation of criminal responsibility (v) An overview of the empirical
developments regarding criminal responsibility, including research on judicial
instruction, and jury/juror decision-making etc.

4.2.2 Mens Rea

Criminal intent or reckless state of mind is one that the prosecution must prove
that an accused had at the time of committing the offense to secure a conviction.
Ordinarily, a crime is not committed, if, the mind of the person doing the act is
innocent. There must be some blame worthy condition of mind (mens rea) before
a person is made criminally liable. For instance, causing injury to an assailant in
private defense is no crime, however, the moment injury is caused with intent to
take revenge, the act becomes criminal. It must be kept in mind that the requisite
guilty state of mind varies from crime to crime. What is an evil intent for one
kind of offence may not be so for another kind.

The underlying principle of the doctrine of mens rea is expressed in the Latin
maxim actus non facit reum nisi mens sit rea – the act does not make one guilty

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unless the mind is also guilty. Those who actually perform the criminal act (e.g., Criminal Responsibility
wielding the weapon that strikes the fatal blow) are often called principals in the
first degree. Those who assist at the time of the commission of the offense (e.g.,
holding the victim down while the principal in the first degree strikes the blow)
are principals in the second degree. And those who assist before the crime takes
place (e.g., by lending the weapon or by providing information) are accessories
before the fact.

Usually, the law considers all equally responsible and liable to the same
punishment. In many cases, though, the accessory before the fact is considered
more culpable (e.g., if he has instigated the offense and arranged for it to be
committed by an associate), and in some cases the person who actually performs
the criminal act is completely innocent of all intent (e.g., a nurse who unknowingly
administers to a patient, on a doctor’s instructions, medicine that turns out to be
poison). In the latter situation, the person who carries out the act is an innocent
agent and not criminally responsible, and the person who caused the innocent
agent to act is considered the principal in the first degree.

The mere commission of a criminal act (or bringing about the state of affairs that
the law provides against) is not enough to constitute a crime, at any rate in the
case of the more serious crimes. These generally require, in addition, some element
of wrongful intent or other fault.

4.2.3 Mens Rea in the Indian Penal Code 1860

The Indian Penal Code 1860 sets out the definition of offences, the general
conditions of liability, the conditions of exemptions from liability and punishments
for the respective offences. Lord Macaulay and his colleagues have not used the
common law doctrine of mens rea in defining these crimes. However, they
preferred to import it by using different terms indicating the required evil intent
or mens rea as an essence of a particular offence.

Guilt in respect of almost all the offences created under the IPC is fastened either
on the ground of intention, or knowledge or reason to believe. Almost all the
offences under the IPC are qualified by one or other words such as ‘wrongful
gainer or wrongful loss’, ‘dishonestly’, ‘fraudulently’, ‘reason to believe’,
‘criminal knowledge or intention’, ‘intentional cooperation’, ‘voluntarily’,
‘malignantly’, ‘wantonly’, ‘maliciously’. All these words indicate the
blameworthy mental condition required at the time of commission of the offence,
in order to constitute an offence. Thus, though the word mens rea as such is
nowhere found in the IPC, its essence is reflected in almost all the provisions of
the Indian Penal Code 1860. Every offence created under the IPC virtually imports
the idea of criminal intent or mens rea in some form or other.

4.2.4 Appropriate Age Limits and Criminal Responsibility

On 2nd February 2007, the Committee on the Rights of the Child issued General
Comment No. 10, that is, Children’s Rights in Juvenile Justice (GC 10), providing
their interpretation of the Convention on the Rights of the Child (CRC) provisions
for children in conflict with the law. This is one of a series of seven explanatory
Fact Sheets highlighting key themes in the GC 10 with the aim of ensuring that
it becomes widely known, understood and used by State Parties.

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Approaches to The minimum age of criminal responsibility (minimum age) refers to the
Understanding Criminal
minimum age below which children shall be presumed not to have the capacity
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to infringe the penal law. The establishment of such a minimum age means that
if a child below that age breaks the law, it cannot be held criminally responsible.
While article 40 of the Convention on the Rights of the Child (CRC) requires
that State Parties establish a minimum age, it leaves the specific age to be decided
by the individual state.

At present, there is a wide spectrum of minimum ages of criminal responsibility

existing in national legislations across the world, that is the range is somewhere
between as young as 7 years up to age 16. Some examples are as follows:
India – 7
Canada and Netherlands – 12
Germany and Uganda – 14
United Kingdom and Switzerland – 10
Niger – 13
Spain – 16
The need for fixing the minimum age
The CRC and the Committee on the Rights of the Child recommend that the
minimum age be raised as high as possible, taking into account the developmental
differences and decision-making capabilities of children and young people.
International and domestic inconsistencies, individual discretion on child maturity
and the contradiction of international conventions make it essential for States to
determine an appropriate minimum age of criminal responsibility. Hence certain
recommendations in this regard are as given below:
• State Parties should set their minimum age to no lower than 12 years of age;
• State Parties who currently have a minimum age which is higher than 12
should not decrease it; rather, they should work to raise it;
• States with two minimum ages should increase their lower age to 12 and
increase their higher age to 14 or 16;
• States should submit detailed information with their periodic reports on the
treatment of children who come in conflict with the law when they are below
the minimum age along with what arrangements have been made to ensure
that their treatment is fair and just;
• Children whose age cannot be proven to be above the minimum age should
not be formally charged in a penal law procedure (the benefit of doubt
principle);
• Even children below the minimum age have a right to a response or reaction
to their alleged actions;
• States should also respect an upper-age limit (the age of 18, according to
CRC), meaning that all children aged 18 and below at the time an offence
has been committed should be considered under youth criminal justice
system. States are also encouraged to raise this limit (up to age 21 for
66 example) whenever possible and appropriate;
• States should set a minimum age that does not, by way of exception, allow Criminal Responsibility
the user of a lower age. In addition, there must be no special rules where
children may be tried as adults by way of exception.

Self Assessment Questions

1) Define criminal responsibility and bring out its characteristic features.
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2) What is Mens Rea? How is it defined in Indian Penal Code.
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3) Why is it necessary to fix age limits for criminal responsibility?
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4) What is an appropriate age limit for criminal responsibility?
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4.3 CRIMINAL RESPONSIBILITY AND MENTAL

DISORDER
4.3.1 Definition of Mental Disorder
Mental disorder is defined as a “disease of the mind” can include any mental
abnormality which causes impairment with the exception of voluntary intoxication
or transient mental states such as hysteria concussion consequently, personality
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Approaches to disorders are eligible for this defence. At the present time this is uncommon,
Understanding Criminal
largely because appellate court decisions have rendered it unlikely that an
Behaviour
individual with a personality disorder would be unable to appreciate the nature
and quality of the act in the manner that the courts have ruled. It implies knowledge
of both legal and moral wrongfulness.

“Moral” means according to societal rather than individual moral code of the
accused. It is insufficient that the individual simply chooses to follow their own
moral dictates when they have the capacity to understand that it is wrong in the
eyes of the law and wrong according to society’s usual standards. The accused
must have the ability to apply that knowledge rationally.

4.3.2 Patterns of Criminality and Mental Disorder

Crime was a response to psychotic symptoms, such as delusions and hallucinations
– many will be NCR
Crime motivated by compulsive urges, such as paraphilia’s or disorders of impulse
control – most not NCR
Crime as the result of a personality disorder
Coincidental mental disorder not related to crime
Mental disorder results from the crime – dissociation, depression
Malingered mental disorder to avoid responsibility.

4.3.3 Different Types of Personality and Mental Disorders

DSM IV describes three clusters of personality disorders:
Cluster A – paranoid, schizoid, schizotypal
Cluster B – antisocial, borderline, histrionic, and narcissistic
Cluster C – avoidant, dependent, obsessive-compulsive
Mental disorders -Paranoia
Paranoia is a thought process thought to be heavily influenced by anxiety or fear,
often to the point of irrationality and delusion. Paranoid thinking typically includes
persecutory beliefs concerning a perceived threat towards oneself. Historically,
this characterisation was used to describe any delusional state. In the DSM-IV-
TR, paranoia is diagnosed in the form of the following:
• Paranoid personality disorder
• Paranoid schizophrenia (a subtype of schizophrenia)
• The persecutory type of delusional disorder, which is also called “querulous
paranoia” when the focus is to remedy some injustice by legal action.
Paranoid Personality Disorder
Paranoid personality disorder is a psychiatric diagnosis characterised by paranoia
and a pervasive, long-standing suspiciousness and generalised mistrust of others.
Those with this condition are hypersensitive, are easily slighted, and habitually
relate to the world by vigilant scanning of the environment for clues or suggestions
to validate their prejudicial ideas or biases. Paranoid individuals are eager
observers. They think they are in danger and look for signs and threats of that
danger, disregarding any facts. (Waldinger, 1997). They tend to be guarded and
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suspicious and have quite constricted emotional lives. Their incapacity for Criminal Responsibility
meaningful emotional involvement and the general pattern of isolated withdrawal
often lend a quality of withdrawnness and isolation to their life experience.

The subjects of most forms of paranoia are liable to commit crime, usually violent,
which may lead to their being tried for assault or murder. The question of their
responsibility before the law is therefore one of the first importance (see also
Insanity: Law). The famous case of McNaghten, tried in 1843 for the murder of
Mr. Drummond, private secretary to Sir Robert Peel, is, in this connexion, highly
important, for McNaghten was a typical paranoiac labouring under delusions of
persecution, and his case formed the basis of the famous deliverance of the judges
in the House of Lords, in the same year, on the general question of criminal
responsibility in insanity. The judges’ deliverance contains the following statement
of law:

If “he labours under such partial delusion only and is not in other respects insane
we think he must be considered in the same situation as to responsibility as if the
facts to which the delusion exists were real. For example, if under the influence
of his delusion he supposes another man to be in the act of attempting to take
away his life, and he kills that man, as he supposes, in self-defense, he would be
exempt from punishment. If his delusion was that the deceased had inflicted a
serious injury to his character and fortune, and he killed him in revenge for such
supposed injury, he would be liable to punishment.”

In considering the above deliverance it must be remembered that it was given

under the influence of the enormous public interest created by the McNaghten
trial. It has also to be remembered that in a criminal court the term responsibility
means liability to legal punishment.

The dictum laid down is open to several objections.

1) It is based upon the erroneous assumption that a person may be insane on
one point and sane on every other. This is a loose popular fallacy for which
there is no foundation in clinical medicine. The systematisation of a delusion
involves, as has been pointed out, the whole personality and affects emotion,
intellect and conduct. The human mind is not divided into mutually exclusive
compartments, but is one indivisible whole liable to be profoundly modified
in its relation to its environment according to the emotional strength of the
predominant morbid concepts.
2) It does not take into account the pathological diminution of the power of
self control. The influence of continued delusions of persecution, especially
if accompanied by painful hallucinations, undermines the power of self
control and tends ultimately to reduce the subject towards the condition of
an automaton which reacts reflexly and blindly to the impulse of the moment.
3) The opinion is further at fault in so far as it assumes that the test of
responsibility rests upon the knowledge of right and wrong, which implies
the power to do right and to avoid wrong, an assumption which is very far
from the truth when applied to the insane. The number of insane criminals
who possess no theoretical knowledge of right and wrong is very few indeed,
so few that for practical purposes they may be disregarded.

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Approaches to 4) The true paranoiac is a person of an anomalous mental constitution apart
Understanding Criminal
from his insanity; although he may to outward appearances be able, on
Behaviour
occasion, to converse or to act rationally, the moment he is dominated by
his delusions he becomes not partially but wholly insane; when in addition
his mind is distracted by ideas of persecution or hallucinations, or both, he
becomes potentially capable of committing a crime, not because of any
inherent vicious propensity but in virtue of his insanity. There is therefore
no middle course, from the medical point of view, in respect to the criminal
responsibility of the subjects of paranoia; they are all insane wholly, not
partially, and should only be dealt with as persons of unsound mind.
Schizophrenia
Schizophrenia is a mental disorder characterised by a disintegration of the process
of thinking and of emotional responsiveness. It most commonly manifests as
auditory hallucinations, paranoid or bizarre delusions, or disorganised speech
and thinking, and it is accompanied by significant social or occupational
dysfunction. The onset of symptoms typically occurs in young adulthood.

4.3.4 Criminal Responsibility and Schizophrenia

Investigating the mental state just before the crime helps when deliberating over
criminal responsibility. Generally, schizophrenia is characterised by an alternation
between the micro psychotic and basic normal states, and classified clinically
into severe, moderate, and mild according to the level of susceptibility to the
occurrence of the activation recurrence phenomenon.

Differentiating between the form and contents of the micro psychotic state is of
marked importance in schizophrenia. In addition, identifying the form facilitates
the distinction between behaviours while sane and those during schizophrenic
episodes. Practically, the activating stimuli, which are likely to trigger the micro
psychotic state, are applied in the interview to establish the psychiatric testimony
based upon the activation-recurrence phenomenon. After the diagnosis of
schizophrenia has been confirmed, the examinee is exposed to the stimuli possibly
activating the micro psychotic state during the criminal act.

Observing the recurrence of the micro psychotic state and its frequency enables
estimation of the susceptibility to the occurrence of the activation-recurrence
phenomenon and the mental state during the criminal act. Therefore, if a micro
psychotic state during the criminal act can be confirmed, the inability to be held
legally responsible is postulated.

In contrast, if a micro psychotic state during the criminal act cannot be confirmed,
the specialist giving the psychiatric testimony should conclude that the crime
was most likely undertaken while sane, taking into account the objective
circumstantial evidence and the suspect’s coherent actions during the crime.
Self Assessment Questions
1) How are criminal responsibility and mental disorders related?
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 Criminal Responsibility
2) Discuss McNaughten trial and indicate why was it necessary to lay down
certain laws in this regard? What are the criticisms against the same?
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3) Define mental disorder and bring out the differences between personality
disorders and mental disorders.
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4) What are the various types of mental disorders? How is schizophrenia
affect criminal responsibility?
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4.4 DELINQUENT ACT

A criminal act committed by an adult would lead to the prosecution of the adult
in a criminal court, but when the same crime is committed by a juvenile, then
this will be within the jurisdiction of the juvenile court. Delinquent acts include
crimes against persons, crimes against property, drug offenses, and crimes against
public order, when juveniles commit such acts.

4.4.1 Criminal Responsibility and Delinquent Act

According to IC 31-37-2-1, a Delinquent child is defined as a delinquent child
if, before becoming eighteen (18) years of age, the child:
1) commits a delinquent act described above
2) needs care, treatment, or rehabilitation that the
a) the child is not receiving;
b) the child is unlikely to accept voluntarily; and
c) is unlikely to be provided or accepted without the coercive intervention
of the court.
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Approaches to According to IC31-37-2-2 a Delinquent act has been described in many ways.
Understanding Criminal
For instance delinquent act would include (a) leaving home without permission
Behaviour
of parent, guardian, or custodian (2) A child commits a delinquent act if, before
becoming eighteen (18) years of age, the child leaves home:
• without reasonable cause; and
• without permission of the parent, guardian, or custodian, who requests the
child’s return.
According to IC 31-37-2-3 Delinquent act refers to the violation of compulsory
school attendance law. Under this A child commits a delinquent act if, before
becoming eighteen (18) years of age, the child violates IC 20-33-2 concerning
compulsory school attendance.

As per IC 31-37-2-4 Delinquent act includes habitual disobedience of parent,

guardian, or custodian Sec. 4 specifies it further by swtating that the a child
commits a delinquent act if, before becoming eighteen (18) years of age, the
child habitually disobeys the reasonable and lawful commands of the child’s
parent, guardian, or custodian.

As per the IC 31-37-2-5 a Delinquent act refers to curfew violation. In Sec. 5. A

child commits a delinquent act if, before becoming eighteen (18) years of age,
the child commits a curfew violation under IC 31-37-3.

IC 31-37-2-6 defines a Delinquent act as a violation concerning minors and

alcoholic beverages Sec. 6. A child commits a delinquent act if, before becoming
eighteen (18) years of age, the child violates and drinks such prohibited beverages.

IC 7.1-5-7 concerning minors and alcoholic beverages.

IC 31-37-2-7 Delinquent act; fireworks violation Sec. 7. A child commits a

delinquent act if, before becoming eighteen (18) years of age, the child violates
IC 22-11-14-6(c) concerning minors and fireworks.

4.4.2 Psychopath and Criminal Responsibility

“Likeable,” “Charming,” “Intelligent,” “Alert,” “Impressive,” “Confidence-
inspiring,” and “A great success with the ladies”: These are the sorts of descriptions
repeatedly used by Cleckley in his famous case-studies of psychopaths. They are
also, of course, “irresponsible,” “self-destructive,” and the like. These descriptions
highlight the great frustrations and puzzles that surround the study of psychopathy.

Psychopaths seem to have in abundance the very traits most desired by normal
persons. The untroubled self-confidence of the psychopath seems almost like an
impossible dream and is generally what “normal” people seek to acquire when
they attend assertiveness training classes. In many instances, the magnetic
attraction of the psychopath for members of the opposite sex seems almost
supernatural.

Cleckley’s seminal hypothesis concerning the psychopath is that he suffers from

a very real mental illness indeed: a profound and incurable affective deficit. If he
really feels anything at all, they are emotions of only the shallowest kind. He
does bizarre and self-destructive things because consequences that would fill
the ordinary man with shame, self-loathing, and embarrassment simply do not
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affect the psychopath at all. What to others would be a disaster is to him merely Criminal Responsibility
a fleeting inconvenience.

Psychopaths can be brilliant, write scholarly works, imitate the words of emotion,
but over time, it becomes clear that their words do not match their actions. They
are the type of person who can claim that they are devastated by grief who then
attend a party “to forget.” The problem is: they really DO forget.

Being very efficient machines, like a computer, they are able to execute very
complex routines designed to elicit from others support for what they want. In
this way, many psychopaths are able to reach very high positions in life. It is only
over time that their associates become aware of the fact that their climbing up
the ladder of success is predicated on violating the rights of others.

The psychopath recognises no flaw in his psyche, no need for change.

Psychopathy is a disorder characterised by emotional abnormalities, such as lack
of empathy, conscience and concern for others, and by conduct abnormalities,
such as repetitive antisocial behaviour. It is estimated that 25% of convicts serving
prison terms suffer from psychopathy, which is a substantial risk factor for crime.
Our criminal justice system assumes that no one should be blamed and punished
unless the agent deserves blame and punishment. The law also has consequential
justifications for criminal punishment, such as prevention, but desert is at least a
necessary justification.

By definition, an agent who is not morally responsible for behaviour does not
deserve moral blame and punishment for it. Indeed, the degree to which moral
and legal responsibility should be identical is of course controversial. Our criminal
law contains numerous instances of strict liability in which punishment, often
potentially severe, is imposed without any proof of moral fault. For the most
part, however, as we have seen, the doctrines that excuse or mitigate criminal
responsibility closely track the variables commonly thought to create moral excuse
or mitigation.
The justification for the law’s view that psychopaths are responsible may be
briefly stated.
First, psychopathy does not prevent agents from acting as the law defines action,
nor does it prevent psychopaths from forming prohibited mental states.
A psychopath who kills another human being intentionally is fully prima facie
criminally responsible.
Further, psychopaths are not excused because they do possess many rational
capacities. They usually know the facts and are generally in touch with reality.

They understand that there are rules and consequences for violating them, which
they treat as a “pricing” system, and they feel pleasure and pain, the anticipation
of which can potentially guide their conduct. This is a relatively thin conception
of rational capacity, but the law deems it sufficient to justify punishment on
desert and deterrence grounds.

Finally, psychopaths do not suffer from lack of self-control as it is traditionally

understood. They do not act in response to desires or impulses that are subjectively
experienced as overwhelming, uncontrollable or irresistible.
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Approaches to Once again, there is no need to excuse according to either a desert or deterrence
Understanding Criminal
justification for punishment.
Behaviour

In short, the law views the psychopath as bad, and not as mad. Psychopaths are
not morally responsible and do not deserve blame and punishment.

There are two potential theories for why this should be so: a specific and a general
theory concerning the psychopath’s rational capacities.

The specific theory concedes the law’s thin view of the psychopath’s rational
capacities, but suggests that the psychopath has particularised deficits of rationality
when moral concern and respect for others is in question.

As a normative matter, the best reasons people have for not violating the rights
of others are that the potential wrongdoer fully understands that it is wrong to do
so and has the capacity to empathize with the potential pain of their possible
victims and to use that as a reason for refraining.

If a person does not understand the point of morality and has no conscience or
capacity for empathy, only fear of punishment will give the person good reason
not to violate the rights of others.

As has been recognised at least since Hobbes, however, social cooperation and
safety cannot be secured solely by the fear of state punishment.

Internalised conscience and fellow feeling are the best guarantors of right action.

The psychopath is not responsive to moral reasons, even if they are responsive
to other reasons. Consequently, they do not have the capacity for moral rationality,
at least when their behaviour implicates moral concerns, and thus they are not
responsible.

They have no access to the most rational reasons to behave well.

The broader theory, most ably advanced by Paul Litton, denies that psychopaths
are rational at all because they lack any evaluative standards to assess and guide
their conduct.

They do not even possess evaluative standards related to the pursuit of excitement
and pleasure.

Psychopaths are like Frankfurt’s concept of the “wanton.” They do not feel regret,
remorse, shame, and guilt, feelings that are typically experienced in reaction to
our failure to meet the standards we have set for ourselves.

They may feel frustration and anger if they fail to get what they want, but these
are not reactive emotions. Such frustration or anger does not entail negative self-
evaluation.

Moreover, severe psychopaths are out of touch with ordinary social reality. They
say that they have goals, but act in ways inconsistent with understanding of what
entails having and achieving a goal.

They do not consistently follow life plans and are impulsive.

74
Much of their conduct appears unintelligible because we cannot imagine what Criminal Responsibility
good reason would motivate it. In brief, psychopaths have a generally diminished
capacity for rational self-governance that is not limited to the sphere of morality.

The psychopath is not a person with whom moral management is possible.

Again, psychopaths know the facts and the rules and are capable of manipulation
of others to achieve their own ends, but they do not get the point of morality.

It is as if they are color blind to moral concerns. The rights and interests of others
have no place on their practical reasoning.

Blaming and punishing such people is morally pointless, although it may be

instrumentally warranted.

Whether psychopaths should be blamed and punished is a question of how we

want to live together. Because psychopaths are not members of the moral
community, I believe that they should not be held responsible.

Psychopathy is a continuum concept so all psychopaths would not have to be

excused. Severe psychopathy would be excused, however, and individual
jurisdictions would have discretion to decide whether less severe psychopathy
should also excuse.

An interesting issue is whether psychopaths would also meet the criteria for
“control” tests for legal insanity, such as the inability to conform one’s conduct
to the requirements of law.

In short, for psychopaths (and others) failures of self-control collapse into

rationality deficits. At present, psychopathy is not a treatable condition, so all
psychopaths who commit non-trivial crimes would be subject to potentially life-
long involuntary civil commitment if they are excused by reason of legal insanity.
Psychopathy is a risk factor for crime, but many might not re-offend despite
their mental abnormality.

Self Assessment Questions

1) Define delinquency in legal terms. What are its important features?
...............................................................................................................
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...............................................................................................................
...............................................................................................................
2) What is a delinquent act? Which are the activities indulges in by a person
come under this category?
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...............................................................................................................
...............................................................................................................
...............................................................................................................
75
Approaches to
Understanding Criminal 3) Discuss delinquent act and criminal responsibility.
Behaviour
...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
4) Discuss the various characteristic features of psychopath and indicate
when a crime committed by a psychopath will be considered criminally
responsible?
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...............................................................................................................
...............................................................................................................
...............................................................................................................

4.5 INSANITY
Insanity, craziness or madness is a spectrum of behaviours characterised by certain
abnormal mental or behavioural patterns. Insanity may manifest as violations of
societal norms, including becoming a danger to themselves and others, though
not all such acts are considered insanity. In modern usage insanity is most
commonly encountered as an informal unscientific term denoting mental
instability, or in the narrow legal context of the insanity defense. In the medical
profession the term is now avoided in favour of diagnoses of specific mental
illness such as schizophrenia and other psychotic disorders. When discussing
mental illness in general terms, “psychopathology” is considered a preferred
descriptor.

4.5.1 Legal Use of the Term Insanity

All jurisdictions require a sanity evaluation to address the question first of whether
or not the defendant has a mental illness. Most courts accept a major mental
illness such as psychosis but will not accept the diagnosis of a personality disorder
for the purposes of an insanity defense. The second question is whether the mental
illness interfered with the defendant’s ability to distinguish right from wrong.
That is, did the defendant know that the alleged behaviour was against the law at
the time the offense was committed. Additionally, some jurisdictions add the
question of whether or not the defendant was in control of their behaviour at the
time of the offense. For example, if the defendant was compelled by some aspect
of their mental illness to commit the illegal act, the defendant could be evaluated
as not in control of their behaviour at the time of the offense. The forensic mental
health specialists submit their evaluations to the court. Since the question of
sanity or insanity is a legal question and not a medical one, the judge and or jury
will make the final decision regarding the defendant’s status regarding an insanity
defense. In most jurisdictions within the United States, if the insanity plea is
76 accepted, the defendant is committed to a psychiatric institution for at least 60
days for further evaluation, and then reevaluated at least yearly after that. Insanity Criminal Responsibility
is generally no defense in a civil lawsuit.

In India, Insanity or unsoundness of mind is not defined in the act. It means a

disorder of the mind, which impairs the cognitive faculty; that is, the reasoning
capacity of man to such an extent as to render him incapable of understanding
consequences of his actions. It means that the person is incapable of knowing
the nature of the act or of realising that the act is wrong or contrary to law. A
person, although of unsound mind, who knows that he is committing an unlawful
act, may not get the benefit of IPC, s. 84. The nature and extent of the unsoundness
must be so high so as to impair his reasoning capacity and that he may not
understand the nature of the act or that it is contrary to law. It excludes from its
preview insanity, which might be caused by engendered by emotional or volitional
factors.

There are four kinds of persons who may be said to be non compos mentis (not
of sound mind) and these are:
1) an idiot – an idiot is one who from birth had defective mental capacity. This
infirmity in him is perpetual without lucid intervals.
2) one made so by illness – by illness, a person is made non compos mentis.
He is therefore excused in case of criminal liability, which he acts under the
influence of this disorder.
3) a lunatic or a madman – lunatics are those who become insane and whose
incapacity might be or was temporary or intermittent. A lunatic is afflicted
by mental disorder only at certain period and vicissitudes, having intervals
of reason; and
4) one who is drunk – this is covered under IPC.

4.5.2 Legal Insanity

The tests for legal insanity may be placed in two broad categories—cognitive
and control (also called “volitional”). There is some doctrinal variation among
the jurisdictions, but the essential questions are similar.

Cognitive tests ask whether, at the time of the crime, the defendant was disabled
by mental disorder from knowing, appreciating, or understanding the nature of
his conduct or that it was morally or legally wrong. Control tests ask whether, as
a result of mental disorder, the defendant was unable at the time of the crime to
control his conduct or to conform his conduct to the requirements of the law.

None of the cognitive or control tests for legal insanity is self-defining. All require
substantial interpretation. To begin, how should the threshold requirement of a
mental disease or disorder or defect be defined? The Supreme Court has made
clear that the definition of mental disorder as a legal criterion for insanity is a
legal question and within the discretion of the states. Thus, states are free to limit
legal insanity to cases involving severe mental disorder or to define mental
disorder in a non-traditional way, as long as the definition is minimally rational.
They need not be bound by the definitions used by the mental health science
disciplines, such as psychiatry and psychology.

77
Approaches to Moreover, there is substantial leeway in whether the tests should be read narrowly
Understanding Criminal
or broadly. Control tests are often characterised as volitional, as if mental disorder
Behaviour
has somehow disabled the agent’s volitional capacities, but this locution is
confusing and should be abandoned.
There is no consensual definition of volition or will in any of the relevant
disciplines, such as psychology or philosophy, and this formulation quickly
dissolves into the intractable issues of how the brain enables the mind and how
intentions are related to actions. Perhaps one helpful way of thinking about volition
is as the executory mental state that produces an action in response to an intention.
Viewed in this way, however, virtually no one with a mental disorder has a
volitional problem because people with disorders are fully able to execute the
intentions that their disordered thoughts, perceptions, and desires may motivate.
Despite the definitional and empirical difficulties, however, some criminologists
and legal philosophers nevertheless believe control tests are necessary for crimes
committed by defendants with impulse disorders, such as Intermittent Explosive
Disorder, or “disorders of desire,” such as Pedophilia.
The problem in cases of alleged lack of self-control is distinguishing the disordered
person from any other agent who also wants to do something very badly that the
agent should not do, such as the very greedy person tempted terribly to steal.
Simply characterising the desire as disordered in one case but not the other cannot
resolve the question of control; it simply begs that question.
Why should we ever excuse someone who acts wrongly in response to a very
strong desire, whether that desire is normal or abnormal? Moreover, what theory
or account allows us to characterise desires, as opposed to perceptions and beliefs,
as irrational? How do we distinguish between an irresistible desire and a desire
simply not resisted? Concerns like these led both the American Bar Association
and the American Psychiatric Association to recommend abolition of an
independent control test during the insanity reform movement that occurred in
response to the Hinckley verdict.
The relevance of mental disorder to legal insanity tests is conceptually
straightforward, although evidentiary problems can arise. Insanity tests address
normative issues concerning responsibility that are broader than claims involving
action or mens rea, which are more factual.
The finder of fact needs the thickest possible description of the defendant’s
perceptions, thoughts, and feelings at the time of the crime in order to determine
whether the legal standard for insanity is met. The fact-finder employing a
cognitive or control test must thus evaluate how mental disorder affects
perceptions, thoughts, beliefs, desires, and feelings. While anatomical,
physiological, and other kinds of non-behavioural evidence may help the finder
of fact make inferences about the defendant’s psychological phenomenology,
the ultimate test is behavioural, making mental disorder evidence crucially
relevant.
People are found legally insane because they lack rational capacity or, more
controversially, because they cannot conform their behaviour to the requirements
of law.

Further, the “causal role” that mental disorder may play in criminal behaviour
78 must be properly understood. Causation in this instance means that mental
disorder produced distorted perceptions, thoughts, or desires that influenced the Criminal Responsibility
defendant’s reasons for action. It does not refer to “mechanical” causation. It has
nothing to do with determinism or free will. The actions of people motivated in
part by abnormal perceptions, beliefs. and desires are actions, but they may be
excused if the abnormality renders the agent sufficiently irrational. Causation of
behaviour by abnormal beliefs, for example, is no different from, no more “causal”
than, causation of behaviour by normal beliefs. The only difference is that in the
former case, the agent may be irrational and should therefore be excused.

Lack of rational capacity—not determinism, lack of free will, or abnormal

causation—justifies the insanity defense and explains its criteria.

4.5.3 Incompetency and Mental Illness

An important distinction to be made is the difference between competency and
criminal responsibility.

The issue of competency is whether a defendant is able to adequately assist his

attorney in preparing a defense, make informed decisions about trial strategy
and whether or not to plead guilty or accept a plea agreement. This issue is dealt
with in UK law as “fitness to plead”.

Criminal responsibility, however, deals with whether a defendant can be held

legally responsible for his criminal behaviour.

Competency largely deals with the defendant’s present condition, while criminal
responsibility addresses the condition at the time the crime was committed.

In the United States, a trial in which the insanity defense is invoked typically
involves the testimony of psychiatrists or psychologists who will present opinions
on the defendant’s state of mind at the time of the offense. Mental health
practitioners are restrained from making a judgment on the issue of whether the
defendant is or is not insane or what is known as the “ultimate issue”.

Insanity is a legal concept, not a psychiatric concept of mental illness. Whether

a person has a diagnosed mental disorder is not sufficient reason, from the court’s
point of view, to relieve them from all responsibility for illegal acts they may
commit. A person may have a mental disorder and be a competent person in
many other ways, able to write checks, handle his personal affairs, hold a job
and carry on a variety of behaviours despite the mental disorder. Likewise, a
person may commit a criminal act, independent of the fact that he has a mental
disorder.

Depending on the jurisdiction, other elements need to be proven, for the court to
accept that the mental disorder was responsible for the criminal act, that is, it
must be shown that the defendant committed the crime because of the mental
disorder. For example, the mental disorder interfered with his ability to determine
right from wrong at the time the offense was committed.

It would unduly stigmatize a person with a diagnosed mental illness to say that
because of the mental illness he is not responsible for his behaviour. Therefore,
persons whose mental disorder is not in dispute will be determined sane as the
court will decide that despite a “mental illness” the defendant was responsible
for the acts he committed and he will be treated in court as a normal defendant.
79
Approaches to If the person has a mental illness and it is determined that the mental illness
Understanding Criminal
interfered with the person’s ability to determine right from wrong, and other
Behaviour
associated criteria a jurisdiction may have, and if the person is willing to plead
guilty or is proven guilty in a court of law, some jurisdiction have an alternative
option known as either a Guilty but Mentally Ill (GBMI) or a Guilty but Insane
verdict. The GBMI verdict is available as an alternative to, rather than in lieu of,
a “not guilty by reason of insanity” verdict. Michigan (1975) was the first state
to create a GBMI verdict.

Sometimes a person without mental illness can be found to be insane; for example,
a person who was in a medical state of delirium at the time of the crime, or a
person who is acting under the influence of a drug that was involuntarily
administered (though voluntary intoxication has been rejected by most
jurisdictions as a defense to crime).

4.5.4 Rules of Appreciation

In this section, various rules applied in United States jurisdiction with respect to
insanity defenses are discussed.

The M’Naghten Rules

The guidelines for the M’Naghten Rules (1843) 10 C & F 200, state, inter alia,
and evaluating the criminal responsibility for defendants claiming to be insane
were settled in the British courts in the case of Daniel M’Naughten in 1843.
M’Naughten was a Scottish woodcutter who murdered the secretary to the prime
minister, Sir Robert Peel, in a botched attempt to assassinate the prime minister
himself. M’Naughten apparently believed that the prime minister was the architect
of the myriad of personal and financial misfortunes that had befallen him. During
his trial, nine witnesses testified to the fact that he was insane, and the jury
acquitted him, finding him “not guilty by reason of insanity.”

The House of Lords asked the judges of the common law courts to answer five
questions on insanity as a criminal defence, and the formulation that emerged
from their review—that a defendant should not be held responsible for his actions
only if, due to his mental disease or defect, he (i) did not know that his act would
be wrong; or (ii) did not understand the nature and quality of his actions—became
the basis of the law governing legal responsibility in cases of insanity in England.
Under the rules, loss of control because of mental illness was no defense. The
M’Naughten rule was embraced with almost no modification by American courts
and legislatures for more than 100 years, until the mid-20th century. In 1998, 25
states plus the District of Columbia still used versions of the M’Naughten rule to
test for legal insanity.

4.5.5 Mens Rea and Legal Insanity

As should be clear from the foregoing Parts, the mens rea issue is entirely distinct
from the legal insanity issue, even if precisely the same evidence would be relevant
to adjudicating both claims. People with mental disorder are not automatons;
rather, they are agents who act for masons. Their reasons may be motivated by
distorted perceptions and beliefs, but they do form intentions and have knowledge
of what they are doing in the narrow, most literal sense. Thus, it is very uncommon
for mental disorder to negate all mens rea, even if the defendant is profoundly
delusional, as Daniel M’Naghten and Andrea Yates presumably were.
80
In some rare cases, as we have already discussed, evidence of mental disorder Criminal Responsibility
might negate mens rea because the mental state it produces will be flatly
inconsistent with the mens rea required by the definition of the crime or because
it indirectly helps to explain why mens rea was not formed on that occasion. In
these cases, the same evidence that a defendant was delusional may both negate
mens rea and support a finding of legal insanity, but the questions being answered
by the evidence are different.

Self Assessment Questions

1) Define insanity.
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2) Give the legal definition of insanity.
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3) Discuss the incompetency to stand trial and mental ilness.
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4) What is meant by Rules of appreciation?
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5) Discuss Men’s Rea in terms of legal insanity.
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81
Approaches to
Understanding Criminal 4.6 CIVIL CASES VS. CRIMINAL CASES - KEY
Behaviour
DIFFERENCES
Civil cases usually involve private disputes between persons or organisations.
Criminal cases involve an action that is considered to be harmful to society as a
whole. Below is a comparison of the key differences between civil and criminal
cases.

4.6.1 Civil Cases

A civil case begins when a person or entity (such as a corporation or the
government), called the plaintiff, claims that another person or entity (the
defendant) has failed to carry out a legal duty owed to the plaintiff. Both the
plaintiff and the defendant are also referred to as “parties” or “litigants.” The
plaintiff may ask the court to tell the defendant to fulfill the duty, or make
compensation for the harm done, or both. Legal duties include respecting rights
established under the Constitution or under federal or state law.

Civil suits are brought in both state and federal courts. An example of a civil
case in a state court would be if a citizen (including a corporation) sued another
citizen for not living up to a contract.

For example, if a lumberyard enters a contract to sell a specific amount of wood

to a carpenter for an agreed-upon price and then fails to deliver the wood, forcing
the carpenter to buy it elsewhere at a higher price, the carpenter might sue the
lumberyard to pay the extra costs incurred because of the lumberyard’s failure to
deliver; these costs are called damages. If these parties were from different states,
however, then that suit could be brought in federal court under diversity
jurisdiction if the amount in question exceeded the minimum required by statute
($75,000).

In India, The Courts shall (subject to the provisions herein contained) have
jurisdiction to try all suits of a civil nature excepting suits of which their
cognisance is either expressly or impliedly barred. A suit in which the right to
property or to an office is contested is a suit of a civil nature, notwithstanding
that such right may depend entirely on the decision of questions as to religious
rites or ceremonies. It is immaterial whether or not any fees are attached to the
office or whether or not such office is attached to a particular place.

Individuals, corporations, and the federal government can also bring civil suits
in federal court claiming violations of federal statutes or constitutional rights.
For example, the federal government can sue a hospital for overbilling Medicare
and Medicaid, a violation of a federal statute. An individual could sue a local
police department for violation of his or her constitutional rights—for example,
the right to assemble peacefully.

4.6.2 Criminal Cases

A person accused of a crime is generally charged in a formal accusation called an
indictment (for felonies or serious crimes) or information (for misdemeanors).
The government, on behalf of the people of the United States, prosecutes the
case through the United States Attorney’s Office if the person is charged with a
federal crime. A state’s attorney’s office prosecutes state crimes.
82
It is not the victim’s responsibility to bring a criminal case. In a kidnapping case, Criminal Responsibility
for instance, the government would prosecute the kidnapper; the victim would
not be a party to the action.

In some criminal cases, there may not be a specific victim. For example, state
governments arrest and prosecute people accused of violating laws against driving
while intoxicated because society regards that as a serious offense that can result
in harm to others.

When a court determines that an individual committed a crime, that person will
receive a sentence. The sentence may be an order to pay a monetary penalty (a
fine and/or restitution to the victim), imprisonment, or supervision in the
community (by a court employee called a U.S. probation officer if a federal
crime), or some combination of these three things.

4.7 TYPES OF CRIME

4.7.1 White-Collar Crime
Within the field of criminology, white-collar crime has been defined by Edwin
Sutherland as “a crime committed by a person of respectability and high social
status in the course of his occupation” (1949). Sutherland was a proponent of
Symbolic Interactionism, and believed that criminal behaviour was learned from
interpersonal interaction with others. White-collar crime, therefore, overlaps with
corporate crime because the opportunity for fraud, bribery, insider trading,
embezzlement, computer crime, copyright infringement, money laundering,
identity theft, and forgery are more available to white-collar employees.

4.7.2 Blue-Collar Crime

The types of crime committed are a function of what is available to the potential
offender. Blue-collar crime tends to be more obvious and thus attracts more
active police attention (e.g. for crimes such as vandalism or shoplifting, where
physical property is involved). In contrast, white collar employees can incorporate
legitimate and criminal behaviour, thus making themselves less obvious when
committing the crime. Therefore, blue collar crime will more often use physical
force, whereas in the corporate world, the identification of a victim is less obvious
and the issue of reporting is complicated by a culture of commercial confidentiality
to protect shareholder value.

4.7.3 State-Corporate Crime

The negotiation of agreements between a state and a corporation will be at a
relatively senior level on both sides, this is almost exclusively a white-collar
“situation” which offers the opportunity for crime. White-collar crime has become
a priority of law enforcement.

When senior levels of a corporation engage in criminal activity using the company
this is sometimes called control fraud.

4.7.4 Organised Crime

Organised crime or criminal organisations are transnational, national, or local
groupings of highly centralised enterprises run by criminals for the purpose of
83
Approaches to engaging in illegal activity, most commonly for monetary profit. The Organised
Understanding Criminal
Crime Control Act (U.S., 1970) defines organised crime as “The unlawful
Behaviour
activities of a highly organised, disciplined association. Such crime is commonly
referred to as the work of the Mob in the U.S.

Mafia is a term used to describe a number of criminal organisations around the

world. In the United States, “the Mafia” generally refers to the Italian American
Mafia. Other powerful organisations described as mafias include the Russian
Mafia, the Irish Mob, the Chinese Triads, the Albanian Mafia, Bosnian mafia,
the Japanese Yakuza, the Neapolitan Camorra, the Calabrian ‘Ndrangheta, the
Apulian Sacra Corona Unita, the Indian Mafia, the Unione Corse, Serbian Mafia,
the Mexican Mafia and the Bulgarian mafia. There are also a number of localised
mafia organisations around the world bearing no link to any specific ethnic
background.

Some criminal organisations, such as terrorist organisations, are politically

motivated. Gangs may become “disciplined” enough to be considered
“organised”. An organised gang or criminal set can also be referred to as a mob.
The act of engaging in criminal activity as a structured group is referred to in the
United States as racketeering.

4.7.5 Juvenile Sex Crimes

This refers to the minor who commits sexual crimes. They indulge in sexual
crimes which are defined as sexually abusive behaviour committed by a person
under the age of 18 that is perpetrated “against the victim’s will, without consent,
and in an aggressive, exploitative, manipulative, or threatening manner.

Examining prevalence data and the characteristics of juvenile sex offenders is a

fundamental component to obtain a precise understanding of this heterogeneous
group. With mandatory reporting laws in place, it became a necessity for providers
to report any incidents of disclosed sexual abuse.

4.7.6 Political Crime

In criminology, a political crime is an offence involving overt acts or omissions
(where there is a duty to act), which prejudice the interests of the state, its
government or the political system. It is to be distinguished from state crime
when it is the states that break both their own criminal laws or public international
law.

States will define as political crimes any behaviour perceived as a threat, real or
imagined, to the state’s survival including both violent and non-violent
oppositional crimes. A consequence of such criminalisation may be that a range
of human rights, civil rights, and freedoms are curtailed, and conduct which
would not normally be considered criminal per se is criminalised at the
convenience of the group holding power.

Thus, while the majority of those who support the current regime may consider
criminalisation of politically motivated behaviour as an acceptable response when
the offender is driven by more extreme political, ideological, religious or other
beliefs, there may be a question of the morality of a law which simply criminalises
ordinary political dissent.
84
4.7.7 Public Order Crime Criminal Responsibility

In criminology public order crime is defined a crime which involves acts that
interfere with the operations of society and the ability of people to function
efficiently, that is, public order crime is a behaviour that has been labelled criminal
because it is contrary to shared norms, social values, and customs. Generally
speaking, deviancy is criminalised when it is too disruptive and has proved
uncontrollable through informal sanctions.

Public order crime should be distinguished from political crime. In the former,
although the identity of the “victim” may be indirect and sometimes diffuse, it is
cumulatively the community that suffers, whereas in a political crime, the state
perceives itself to be the victim and criminalises the behaviour it considers
threatening. Thus, public order crime includes consensual crime, victimless vice,
and victimless crime. It asserts the need to use the law to maintain order both in
the legal and moral sense.

For example, in cases where a criminal act subverts or undermines the commercial
effectiveness of normative business practices, the negative consequences extend
beyond those at whom the specific immediate harm was intended. Similarly, in
environmental law, there are offences that do not have a direct, immediate and
tangible victim, so crimes go largely unreported and unprosecuted because of
the problem of lack of victim awareness. In short, there are no clear, unequivocal
definitions of ‘consensus’, ‘harm’, ‘injury’, ‘offender’, and ‘victim’.

4.7.8 State Crime

In criminology, state crime is activity or failures to act that break the state’s own
criminal law or public international law. For these purposes, Ross (2000b) defines
a “state” as the elected and appointed officials, the bureaucracy, and the
institutions, bodies and organisations comprising the apparatus of the government.
Initially, the state was the agency of deterrence, using the threat of punishment
as a utilitarian tool to shape the behaviour of its citizens. Then, it became the
mediator, interpreting society’s wishes for conflict resolution. Theorists then
identified the state as the “victim” in victimless crimes.

Green & Ward (2004) adopt Weber’s Thesis of a sovereign “state” as possessing
a monopoly on the right to use force. Thus, the criteria for determining whether
a state is “deviant” will draw on international norms and standards of behaviour
for achieving the state’s usual operating goals. One of those standards will be
whether the state respects human rights in the exercise of its powers. But, one of
the definitional difficulties is that the states themselves define what is criminal
within their own territories, and as sovereign powers, they are not accountable to
the international community unless they submit to international jurisdiction
generally, or criminal jurisdiction in particular.

4.7.9 Victimless Crime

A victimless crime is an infraction of criminal law without any identifiable
evidence of an individual that has suffered damage in the infraction. Typical
examples include violations of laws concerning public decency or public order,
and include the sale, possession, and use of illicit drugs, prostitution, trafficking
in pornography, and gambling. These laws are based on the offence principle, as
opposed to laws based on the harm principle.
85
Approaches to In a constitutional state, the legislature, a body in turn elected by the sovereign,
Understanding Criminal
defines criminal law. A crime (as opposed to a civil wrong or tort) is an infraction
Behaviour
of a law, and will not always have an identifiable individual or group of individuals
as its victims, but may also, for example, consist of the preparations that did not
result in any damage (mens rea in the absence of actus reus), such as attempted
murder, offenses against legal persons as opposed to individuals or natural persons,
or directed against communal goods such as social order or a social contract or
the state itself, as in tax avoidance and tax evasion, treason, or, in non-secular
systems, the supernatural (infractions of religious law).
Self Assessment Questions
1) What are the key differences in civil and criminal cases? Elucidate
...............................................................................................................
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2) Discuss white collar crime and blue collar crime bringing out the
differences between them.
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...............................................................................................................
3) What is an organised crime? Would you say that the state corporate
crime is an organised crime?
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...............................................................................................................
4) Distinguish between political crime and state crime?
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86
 Criminal Responsibility
4.8 FACTORS THAT HAVE TO BE CONSIDERED
IN REGARD TO CRIMINAL RESPONSIBILITY
Let us first take up the biological factors. Neurochemicals are responsible for the
activation of behavioural patterns and tendencies in specific areas of the brain.
There have been attempts to determine the role of neurochemicals in influencing
criminal or antisocial behaviour. Included in the list of neurochemicals already
cited by researchers are monoamine oxidase (MOA), epinephrine, norepinephrine,
serotonin, and dopamine. Monoamine oxidase (MAO) is an enzyme that has
been shown to be related to antisocial behaviour. Specifically, low MAO activity
results in disinhibition which can lead to impulsivity and aggression.

Serotonin is a neurochemical that plays an important role in the personality traits

of depression, anxiety, and bipolar disorder. It is also involved with brain
development and a disorder in this system could lead to an increase in
aggressiveness and impulsivity. Low levels of serotonin have been found to be
associated with impulsive behaviour and emotional aggression. Dopamine is a
neurotransmitter in the brain that is associated with pleasure and is also one of
the neurotransmitters that is chiefly associated with aggression. Activation of
both affective (emotionally driven) and predatory aggression is accomplished
by dopamine .

Attention Deficit Hyperactivity Disorder (ADHD), Conduct Disorder (CD), and

Oppositional Defiance Disorder (ODD) are three of the more prominent disorders
that have been shown to have a relationship with later adult behaviour. ODD is
characterised by argumentativeness, noncompliance, and irritability, which can
be found in early childhood. When a child with ODD grows older, the
characteristics of their behaviour also change and more often for the worse. They
start to lie and steal, engage in vandalism, substance abuse, and show aggression
towards peers. Frequently ODD is the first disorder that is identified in children
and if sustained can lead to the diagnosis of CD. It is important to note however
that not all children who are diagnosed with ODD will develop CD.

ADHD is associated with hyperactivity-impulsivity and the inability to keep

attention focused on one thing . Impulse control dysfunction and the presence of
hyperactivity and inattention are the most highly related predisposing factors for
presentation of antisocial behaviour. Children diagnosed with ADHD have the
inability to analyse and anticipate consequences or learn from their past behaviour.
Children with this disorder are at risk of developing ODD and CD, unless the
child is only diagnosed with Attention Deficit Disorder (ADD), in which case
their chances of developing ODD or CD are limited. The future for some children
is made worse when ADHD and CD are co-occurring because they will be more
likely to continue their antisocial tendencies into adulthood.

Conduct Disorder is characterised with an individual’s violation of societal rules

and norms (Morley & Hall, 2003). As the tendencies or behaviours of those
children who are diagnosed with ODD or ADHD worsen and become more
prevalent, the next logical diagnosis is CD. What is even more significant is the
fact that ODD, ADHD, and CD are risk factors for developing Antisocial
Personality Disorder (ASPD). This disorder can only be diagnosed when an
individual is over the age of eighteen and at which point an individual shows
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Approaches to persistent disregard for the rights of others. ASPD has been shown to be associated
Understanding Criminal
with an increased risk of criminal activity. Therefore, it is of great importance
Behaviour
that these early childhood disorders are correctly diagnosed and effectively treated
to prevent future problems.

Another critical aspect that must be examined regarding antisocial or criminal

behaviour is the personality characteristics of individuals. Two of the most cited
personality traits that can be shown to have an association with antisocial or
criminal behaviour are impulsivity and aggression.

The family environment is critical to the upbringing of a child and if problems

exist then the child is most likely to suffer the consequences. We have seen the
problems associated with a child who is diagnosed with ADHD and how that
can influence antisocial or criminal behaviour. In relation to that, some researchers
have claimed that it is the family environment that influences the hyperactivity
of children.

Another significant factor in the development of antisocial or delinquent

behaviour in adolescence is peer groups. There is a correlation between the
involvement in an antisocial or delinquent peer group and problem behaviour.
One of the primary causes as to why this occurs can be traced back to aggressive
behaviour in young children. When children are in preschool and show aggressive
tendencies towards their peers, they will likely be deemed as an outcast. This
creates poor peer relationships and relegates those children to be with others
who share similar behaviours.

Social learning theory has been cited as way to explain how the environment can
influence a child’s behaviour. Using this theory to explain the aggressive or
antisocial behaviour of a child means that a child observes aggressive behaviour
between parents, siblings, or both. As a result, the children believe that this
aggressive behaviour is normal and can therefore use it themselves because they
do not see the harm in acting similar to their parents.

The exposure to such high levels of aggression and other environmental factors
greatly influences and reinforces a child’s behaviour. A significant point that
should be known however is the fact that other research has supported the notion
that genetics do influence levels of aggression, which stands in opposition to the
social learning theory (Miles & Carey, 1997).

4.9 LET US SUM UP

There cannot be enough possible evidence to conclude the point that genetics
play the most important role in the outcome or behaviour of an individual. The
opposing viewpoint of environmental factors is not without its doubts either as
to being the prominent factor influencing antisocial or criminal behaviour of an
individual. In this paper, there is more evidence supporting the genetics viewpoint,
but that does not mean it is more important. With the research and studies having
numerous flaws and the inability to adequately separate nature and nurture, there
is still a great debate between genetic and environmental factors.

Researchers, however, have certainly come far in their progression, to the point
where there is a large consensus of the fact that genes do influence behaviour to
88
a certain extent. Although not as widely publicized, it is the belief of the author Criminal Responsibility
that these same researchers also believe that environmental factors account for
what cannot be explained by genes. Therefore it seems obvious to reach the
conclusion that an individual’s antisocial or criminal behaviour can be the result
of both their genetic background and the environment in which they were raised.

One researcher has proposed a theory relating to sociopaths and their antisocial
behaviour. According to the theory, a primary sociopath is lacking in moral
development and does not feel socially responsible for their actions. This type of
sociopath is a product of the individual’s personality, physiotype, and genotype.
A secondary sociopath develops in response to his or her environment because
of the disadvantages of social competition. Living in an urban residence, having
a low socio-economic status, or poor social skills can lead an individual to being
unsuccessful in reaching their needs in a socially desirable way, which can turn
into antisocial or criminal behaviour. The first type of sociopath is dependent on
their genetic makeup and personality, while certain factors of the second type
can also be heritable. Notwithstanding, the second type has a greater dependence
on environmental factors (Miles & Carey, 1997). Perhaps from this review of
both genetic and environmental factors, it seems clear to support the idea of the
secondary sociopath type. An individual can inherit certain genes and when
combined with the right environmental factors can lead them to engage in
antisocial or criminal behaviour.

Although not mentioned extensively in the text of the paper, there is a great need
to try and identify those individuals, especially children, who may become
susceptible to certain disorders or personality traits that can lead into antisocial,
delinquent, or criminal behaviour. Society should not try to imitate the era of
controlled breeding, but rather focus on the treatment and rehabilitation of those
individuals in need. Certain educational, environment enrichment programs have
been shown to have a lasting effect on children if given by a certain age (Raine,
Mellingen, Liu, Venables, & Mednick, 2003). If more of these programs could
be developed, society could help prevent the future antisocial or criminal
behaviour of children.

4.10 UNIT END QUESTIONS

1) Define criminal responsibility and indicate when does a crime become
criminal responsibility?
2) Discuss Men’s Rea and its provisions in great detail.
3) Define mental disorders of all typ[es and indicate the relagtionship between
criminal responsibility and mental disorders.
4) Discuss critically the criminal responsibility in terms of the delinquent act?
5) Defining the term insandity indicate how criminal responsibility is related
to insanity?
6) What are the differences between criminal and civil cases?
7) Elucidate the various types of crimes and indicate the criminal responsibility
in regard to each of them.

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Approaches to
Understanding Criminal 4.11 GLOSSARY
Behaviour
Automaton : Moving mechanical device made in imitation of a
human being.
Executor : A person appointed by a testator to carry out the
terms of their will.
Fallacy : Mistaken belief or a failure in reasoning which
renders an argument invalid.
Fraudulent : Done by or involving fraud.
Hysteria : Exaggerated or uncontrollable emotion or
excitement or convergence of psychological stress
into physical symptoms or a change in self-
awareness.
Perpetrate : Carry out or commit (a harmful, illegal or immoral
action).
Persecute : Subject to prolonged hospitality or ill-treatment.
Personality Disorder : Deeply ingrained and mal-adaptive pattern of
behaviour typically causing long term difficulties
in social relationships.
Psychosis : A mental disorder in which thought and emotions
are so impaired that perception of external reality
is severely affected.
Transient : Lasting for a short while.
Vandalise : Deliberately destroy or damage property.

4.12 SUGGESTED READINGS

Sharma, Rajender Kumar (1999). Criminology and Penology. HB Books, New
Delhi
Ahuja , Ram (2000). Criminology. Rawat Publications, New Delhi
Indian Penal Code 1860

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