Understanding Recklessness, Negligence, and Criminal Liability
Lesson 9: Recklessness and Negligence
1. Components of Recklessness
Recklessness involves two essential components:
- Objective Recklessness:
- Breach of duty of care (general and individual).
- Producing a material result.
- Objective imputation: the link between the breach of duty and the outcome.
- Subjective Recklessness: The subject intended the conduct but not the outcome.
2. Classes of Recklessness
The Criminal Code differentiates recklessness based on severity:
- Negligence (culpa lata): Comparable to recklessness, omitting the required care and attention. A specific type is professional negligence, distinct from incompetence.
- Slight Negligence (culpa levis): Omission of ordinary care and attention, less serious than negligence.
3. Negligence as an Offense
Negligence is not always a criminal offense. The resulting harm determines whether it constitutes a crime (e.g., injuries) or a lesser infraction.
4. Resolving Felony Cases
Felony cases involving recklessness apply the principle of ideal concurrence of crimes (Art. 77 CP). The penalty applied is the upper half of the penalty for the more serious infraction.
Lesson 10: Omission and Criminal Liability
1. Omission as Human Behavior
Omission is a human behavior because individuals can choose to act or not act, especially when a legal duty exists.
2. Kinds of Omission
- Pure Omission (omisión propia): Failing to perform a legally required action, without a specific result.
- Improper Omission/Commission by Omission (omisión impropia): Failing to prevent a result one has a duty to prevent, effectively causing the result (e.g., a doctor failing to intervene to save a patient’s life).
3. Pure Omission
Pure omission involves not performing a legal duty, without a required result. It is only punishable in specific cases defined by law.
4. Pure Omission and Results
Pure omission is not linked to a specific result. The law mandates the action but does not attribute a resulting outcome.
5. Omission Linked to a Result
Commission by omission is linked to a result. It occurs when an individual has a duty to act and their inaction causes a specific outcome.
6. Causal Link Between Omission and Result
A causal link exists if performing the duty would have prevented the result (hypothetical causation). This is assessed by considering whether the individual’s action would have changed the outcome.
7. Commission by Omission in the Criminal Code
Commission by omission is explicitly defined in the law (e.g., Art. 305.1).
8. Legal Duty in Commission by Omission
Art. 11 establishes the legal duty to act, creating a guarantor position for the individual regarding the legally protected interest.
9. Guarantor Position in Commission by Omission
Art. 11 dictates that failing to fulfill a duty to prevent a result is punishable as if the subject caused the result. This can be problematic when applied to offenses of action.
10. Objective Attribution of a Result
A result is objectively attributable to a subject if they had a specific duty to protect the legal right (guarantor position) and failed to do so, regardless of direct physical causation.
Lesson 11: Preparatory Acts and Attempt
1. Punishment of Preparatory Acts
Preparatory acts are generally not punishable, except in cases of conspiracy, instigation, and provocation (Art. 17 and 18 CP), which involve multiple individuals.
2. Punishable Preparatory Acts
Conspiracy and provocation are punishable preparatory acts as defined in Art. 17 and 18 of the Criminal Code.
3. Finished vs. Unfinished Attempt
An unfinished attempt occurs when not all necessary actions for the crime are completed (e.g., a jammed gun). A finished attempt (formerly frustrated crime) occurs when all necessary actions are completed, but the intended result does not occur (e.g., shooting someone wearing a bulletproof vest).
4. Elements of Attempt
Attempt involves objective elements (external actions directed towards the crime) and subjective elements (the intent to commit the crime).
5. Punishment of Inept Attempt (Tentativa inidónea)
Inept attempts are sometimes punishable. An absolutely inept attempt (no danger to the legal right) is not punishable. A relatively inept attempt (endangering the legal right, e.g., using a small dose of poison) is punishable.
6. Voluntary Withdrawal in Attempt
Voluntary withdrawal negates criminal liability. In an unfinished attempt, the subject stops before completing the actions. In a finished attempt, the subject actively prevents the intended result.
Lesson 12: Authorship and Participation
1. Theories Differentiating Author and Participant
- Dominion Theory: The author has control over the situation, while participants have subordinate roles.
- Belonging Theory: The participant’s contribution is so significant that the act is attributed to them as well as the author.
2. Mediate Authorship
(Art. 28 CP) Mediate authorship occurs when someone uses another person as an instrument to commit the crime. The instrument is not criminally responsible, while the mastermind is.
Example: A doctor wanting a patient dead gives a nurse the wrong substance, causing the patient’s death without the nurse’s knowledge. The nurse is not responsible, while the doctor is.