Understanding Legal Aspects of Injuries and Harm in the Criminal Code
TOPIC II. OF INJURIES
Legally Protected Health
The law protects the physical and psychological health of independent human beings. Crimes against this health can have indeterminate results. The commission of such crimes is often determined in accordance with Art. CP 11. These crimes may occur with willful intent or gross negligence (the boundary between the two can be diffuse). The causal relationship between action and outcome must be established, and it is especially important in cases of negligence to meet the criteria of objective imputation.
Defining Injury
The base rate is at 147. Definition: Any injury that impairs physical or mental health. Injury vs. Lack: Beyond voluntary first aid, if the injury requires medical or surgical treatment, it is considered an injury. Even if medical or surgical treatment doesn’t physically take place, the intent to require such treatment is sufficient for the offense. Failure to meet the requirement of medical or surgical treatment may fall under the alternative category of 147.1 if the injury is not as severe.
Medical Treatment
Medical Treatment: Systematic medical acts aimed at curing a disease or reducing defects. Medical treatment encompasses further treatments, initial medical assistance, or a simple treatment plan to follow within a timeframe. Assistance: Help provided to someone experiencing a problem, complaint, or pain, without necessarily requiring curative measures. Simple means of surveillance are not considered medical treatment.
Article 147 – Attenuated Type
The second section of Art. 147 presents an attenuated type of injury compared to the first paragraph, considering the means used or the outcome produced (healing time, location on the body, etc.).
Article 147.1 – Four Lesions Within a Year
Upon failure constituting four lesions (Art. 617) within one year, this will be considered an offense of injury under Art. 147.1.
Article 148 – Aggravated Injury
Aggravated Type of Injury: Includes circumstances that increase the penalty in response to the outcome or risk caused:
- Use of weapons, instruments, objects, means, methods, or forms specifically dangerous to life or physical or mental health.
- Presence of malice or premeditation.
- Victim under 12 years old or incapacitated.
- Victim is a current or former spouse or in a similar affectionate relationship.
- Victim is a particularly vulnerable person living with the perpetrator.
Article 149.1 – Most Important Type of Injuries
Includes the loss or impairment of an organ or a primary member, leading to impotence, infertility, severe deformity, or severe somatic or mental illness. Irreversible or hardly correctable damage will be punished severely. Major organ refers to an essential but not necessarily vital organ.
Deformity
The concept of deformity is aesthetic and depends on various circumstances (age, sex, profession, etc.).
Article 149.2 – Genital Mutilation
Genital mutilation in all its manifestations carries a penalty equal to the type in the previous section, with the added possibility of disqualification from exercising parental authority.
Article 150 – Exacerbated Type
An exacerbated form of the 147 type, subsidiary to 149, adapted to the loss of a non-primary organ or member, or deformity. A non-primary body part is neither vital nor essential to health or safety; deformity causes aesthetic displeasure (objective, not subjective, is required).
Cosmetic Surgery Considerations
The possibility of cosmetic surgery to repair the deformity should be assessed for the purposes of criminal severity.
Subjective Elements
Both the basic and qualified types are categorized as willful misconduct. Careless commission is punishable under Articles 152 and 621. In the absence of fraud, as long as the elements of the charge are present through negligence, this less severe form of imputation must be considered. If an initial fraudulent action precedes the causation of a more serious injury than intended, we have a greater offense in the contest between the initial willful injury and the injury actually caused by negligence.
Recklessness
Recklessness is punishable only when it is severe. Article 152 punishes reckless behavior related to Articles 147.1, 149, and 150. Negligence related to injuries under Article 147.2 and any other injuries caused by ordinary negligence are subsumed under Article 621.1 and .3. This can be accompanied by the deprivation of the right to drive motor vehicles, motorcycles, or possess and carry weapons when the conduct is subsumed under a crime or misdemeanor of reckless injury. Professional disqualification is also considered in the context of crimes involving professional negligence.
Article 151 – Preparatory Offenses
Offenses punishable one or two degrees lower than the penalty for the crime of willful injury in question.
Article 153 – Human Dignity
Article 153 protects human dignity. It covers any physical or mental impairment (if other than an injury constituting a crime under the CP), or mistreatment or beating without causing injury. This rule gives a taxable role to women, providing greater protection by imposing slightly higher penalties on male perpetrators when the woman is emotionally attached to him but not living with him, and in the case of a particularly vulnerable person living with the perpetrator (Art. 153.1). The second section includes a succession of individuals to whom this article applies, specifically the subjects covered by section 173.2, except those contemplated in the previous article (Art. 153.2). The third section provides a specific aggravating factor when the offense is committed in the presence of minors, using weapons, or in the shared home of the victim or perpetrator, or by breaking the penalty established in Art. 48 or any other precautionary measure or security of the same nature. Finally, in its third paragraph, it specifies that the judge, taking into account the personal circumstances of the perpetrator and the concurrent realization of the fact, may impose a lesser penalty in degree.
Article 154 – Participation in Brawl
Individuals engaging in a riotous brawl and using means or instruments that endanger life or personal integrity are punishable. An injurious result is not required for the completion of the type; the risk itself is punishable. This applies to two or more people, and the act must be physical; words are not enough. Threatening or taking up arms in a fight and likely to be used according to the characteristics typical of Art. 620.1°.
Consent of the Injured
Article 155: Provides for the consent of the victim in case of injury. In principle, it operates as an acquittal excuse, but can reduce the penalty by one or two degrees. This consent must be free, spontaneous, and expressive. It will not be valid if given by a minor or incompetent person.
Article 156 – Exemptions from Criminal Liability
Exempts from criminal liability in cases of organ transplants carried out as provided by law, sterilizations, and transsexual surgery, when consent is free, spontaneous, and expressive of the person concerned, except in cases of vitiated consent, consent obtained through price or reward, or when the person giving consent is a minor or incompetent. It also includes a paragraph dedicated to the sterilization of mentally disabled individuals with severe disabilities, where liability is excluded if it is done in accordance with the requirements of the paragraph, based mainly but not only on consent in their own interest.
Article 156 A – Organ Trafficking
This article addresses the global concern of organ trafficking, particularly prevalent in poor countries where organs are extracted for implantation into the wealthy.
- Promoting, encouraging, facilitating, or advertising the procurement or trafficking of human organs or transplants outside legal channels. A distinction is made between whether the organ is major or not, with the former being a more serious case from a criminal perspective. Criminal prosecution is excluded for the person who consents to the removal of their own organ.
- The recipient who receives the organ knowing that it was obtained outside legal channels is liable to the same penalty as the person who provided it. Based on the facts and circumstances of the offender, the penalty may be lowered by one or two degrees.
- This article establishes the penalty for legal entities carrying out the crimes of this article, establishing a fine in relation to the benefit obtained.
Injury to the Fetus
The law protects the health and physical integrity of the fetus, defined as the fertilized egg nestled in the womb until it is expelled. Genetic manipulation is considered a crime, and if the act results in harm after birth, the crimes of homicide and injury may be applied. Abortion is related to this, but we will consider the offense of injury to the fetus when the perpetrator intends to cause injury without considering the death of the fetus; if the behavior were unwise, it would be considered abortion.
Causation and Challenges
Causation in this crime is difficult to establish because it is only 100% evident after delivery, extending the relationship between action and result in time. Determining the causal relationship is further complicated by the unknown causes of many diseases, malformations, and defects present at birth.
Article 157 – Willful Injury to the Fetus
Anyone who, by undetermined means, causes fetal harm, seriously damaging its normal development or causing a significant physical or mental defect. The penalty is accompanied by disqualification if the typical action is carried out by a healthcare professional. Fraud and material outcomes are considered.
Article 158 – Injury to the Fetus Due to Negligence
Negligence that results in damage to the normal development of the fetus or causes physical or mental defects. Professional disqualification may apply. Pregnant women are exempt from criminal liability.