This chapter will delve into the various theories that underpin, justify and criticise the existence of defilement laws as those of a strict liability nature. It shall also discuss the principle of ‘best interest of the child’ and evaluate how child laws and policies should be structured based on this principle.
2.1. Defilement as a crime of strict liability
Mens rea is presumed to be an essential element in every criminal offence. Mens rea refers to the state of mind defined in a criminal offence required to convict a particular defendant of a particular crime. However, there are some offences in which mens rea is not a required element of the offence. Such offences which negate requirements of proof of mental state are known as strict
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This is because of a cardinal principle in criminal law found in the maxim actus non facit reum, nisi mens sit rea. This means that for a crime to have occurred one has to prove the two elements of criminal law which are actus reus and mens rea. Yet the doctrine of strict liability dictates that a crime can be committed without the mens rea element. However, the notion that it can be said that a crime has been committed without the mens rea element has gained a lot of traction over the years. This notion seems unbending in cases of statutory rape. Strict liability permits the conviction of a criminal defendant in the absence of mens rea in a case of the offence of …show more content…
A person is blameworthy where he or she consciously and knowingly breaks the law and not as a result of an accident or mistake of fact. A defendant must have acted consciously below the designated level or standard of care that a reasonable man would have, given similar circumstances. Strict liability offences at times may punish defendants who have not chosen to violate prescribed laws. In this case, based on a retributive theory, such defendants do not ‘deserve’ to be punished. Also, sometimes an innocent individual may be sacrificed by being punished for the sake of the majority. Therefore, retribution justifies an application of strict liability laws where individuals are aware of the law and go ahead to violate them knowingly. However, this theory is undermined where defendants commit strict liability statutory rape unknowingly or with good faith. This would be a case of minors have consensual sex with each other with knowledge that their actions constitutes an
The Supreme Court “invalidated an absolute liability offence, under the section seven of the Charter. It was on the basis that it “could send a person to jail for driving with a suspended licence when that person is not have subjective fault (that is she did not know or was not aware of the risk that her licence was suspended). It went on to describe that “absolute liability offences offend the principle of fundamental justice by punishing the morally innocent, they will not violate section 7 of the Charter, unless they threaten the accused’s right to life, liberty and security of the person. The courts have upheld absolute liability offences that could not result in
Keeping the facts of the case in mind the accused was aware of her husband’s tendencies towards acting angrily and impulsively, Creakle’s rage at Esther’s departure was further fueled by their prior argument. After she told him to “go away” the reasonable person would believe that if she could no longer see him he had taken heed to her advice. Knowing the nature of her husband Esther was cautious and double checked to confirm he had left, due to her restricted visibility she was unable to see him. In this situation, her actions did not fall below the expected standard of care as she was cautious towards the outcome and took steps to ensure Creakle’s safety. As was ruled in Beatty (2008) if a reasonable person holding the knowledge of the accused, could not have foreseen the consequences of their actions they are not morally blameworthy, and therefore lack the mens rea necessary for the criminal offence (Verdun-Jones, 2015, p.120)
This concept is very important in Canadian law as we do not want to send an innocent individual to jail. Judges follow guidelines and policies which are set in place, but they also use their discretion when formulating whether the individual is deemed guilty or innocent. In this case, the Judge found the accused not guilty of the offence, which demonstrates ignorance or lack of understanding regarding the law with sexual assault. 19-year-old Victim The victim values justice; she wants justice for the horrendous act which she endured.
The overall assertion is prosecutors are quicker to file charges in aggravated rape cases than in simple rapes case where the victim’s behavior can delay charging decision. In the Spohn and Holleran (2001) Prosecuting Sexual Assault A Comparison Of Charging Decision Is Sexual Assault Cases Involving Stranger’s Acquaintance In Intimate Partners. similar to the above study researchers focus on the prosecution decision to file charges in sexual assault cases based on factors such as the victims relationship to the defendant, the victim characteristics, and the type of rape (aggravated or simple rape). Spohn and Holleran (2001) identifies the two types of classifications rape that prosecutors use in determining when to move forward in the charging decision.
Prior to the enactment of the rape shield law a defendant could offer testimony of a victim that would prejudice the jury against the rape victim. Sometimes the defendant in a rape case would portray the rape victim as promiscuous or having a series of sexual relationships. The defendant would attempt to sway the jury in his favor by portraying himself as a clean cut, innocent person who is simply guilty of exercising poor judgment and engaging in sexual behavior with someone of loose moral character rather than the callous rapist
The author seeks to place the responsibility of punishing innocent people in the correctional system, onto that of the state. The role of the correctional system in criminal justice is to punish and rehabilitate, but why happens when someone is placed in there through a wrongful conviction. Though various cases have different circumstances, the author states that the one constant factor in all wrongful conviction cases is the state. By expanding upon existing arguments relevant to state crime the author seeks to expand the readers understanding of wrongful convictions, purely from a criminological point of view. By doing so the article will add to the readers understanding of the tragic scenario of wrongful conviction.
There have been arguments over the stressing about the personal accountability focus on the notions of the victim facilitation, precipitation, and the provocation. All of these are considered blameworthy behaviors that have derived from a broader of those that is a shared responsibility. Each of these concepts has been described in a specific, identifiable, and of the undesirable actions that have been taken by any certain individuals that are immediately just before they are harmed. Provocation is one of the charges that are the most charges that can be "leveled at an injured party," facilitation is the least of the serious charges. With these three terms that have been used and that are somewhat loosely and that are inconsistently by the
The main principle of the recently updated Children’s Act (2004) is to protect children and make sure their health and well-being is paramount. The Act was updated due to mistakes made in the Victoria Climbe case as well as various other reasons. The Victoria Climbe case involved an eight year old girl who was failed by local authorities she later died from her injuries in February 2000 after being tortured and starved to death by her great auntie and her boyfriend. Victoria was brought to London, England for a better life from the Ivory coast by her aunty and the abuse started once she moved in with her boyfriend Carl.
Innocent defendants who are risk averse cannot be willing to risk going to trial and receiving harsh sentences and instead choose to plead guilty to ensure the receive lenient sentences. It undermines the integrity of the justice system as it allows the government to evade the rigorous standards required by the due process. It allows the prosecutor to take the role of a judge and jury in determining the guilt of the defendant. It also allows the defendant to escape the full punishment for their misconduct by giving them lenient sentences. Lenient sentences offered to those who plea bargain in contrast to harsher sentences for those who are convicted after a full trial lead to disparities in individuals convicted of similar offences.
The due process model stresses law and is designed to “[protect] the rights of individuals and [reserve] punishment for those who unquestionably deserve it… even though some guilty defendants may go free because the evidence against them” is inconclusive (Cole, DeJong, & Smith, 2014, p. 24). Nevertheless, the goal of the crime control model is to repress crime and stress order. This model “values efficient case processing and punishment over the possibility that innocent people might be swept up in the process” (Cole, DeJong, & Smith, 2014, p. 24). “The Brothel Boy” is an example of the crime control model. The natives wanted someone to pay for the crime that was committed, and Police Magistrate Blair felt that pressure.
Texas revised its insanity defense statute after John Hinckley was found not guilty by reason of insanity for the 1981 attempted assassination of then-President Ronald Reagan. The Hinckley verdict enraged many and fed the common misconception that those defendants “got away with murder.” A key requirement in criminal law is mens rea: a “guilty mind.” The reaction and statute change defined mens rea as simply knowing the act was wrong (Princeton.edu, 2005).
Definition and Description of Procedural Justice Procedural justice is the act involved in decision making. It incorporates the process of involving transparency and fairness in making decisions. The incorporation of justice in this process is equally essential it entails that all parties allowed to give their views before decision are made concerning a given matter. Some theories state that restorative and distributive justice might not be met but for as long as there is a fair and justice procedure, there is always the possibility of having outcomes that are equitable (Jason &Tyler, 2003).
Introduction This question requires for an understanding on the rules and principles relating to criminal liability for an omission. As well as whether the rules and principles are too restrictive on individual freedom. In order to have an understanding of the rules and principles of omissions, one first must understand how criminal liability is imposed. For a person to be found guilty of a crime they must have both the mens rea and actus reus of the committed crime.
Men make laws to instill order in a society and prevent chaos in any shape or form. Naturally, laws will always be somewhat unjust because it is impossible to consistently construct laws that directly and equally benefit all members of a society. There will always be a majority that makes the laws and a minority that has to obey the laws. Although laws are usually the standard of morality by which we live by, they must be disobeyed in certain situations. These situations are, but not limited to, an undemocratic formation of aforementioned laws, laws that are inherently unjust according to human law which can be synonymous with God’s law.
Bourhill v Young (1943) AC 92 is a Scottish delict case which emphasize on how extensive an individual duty to ensure others are not harmed by their actions or activities, this case has established on how the scope of recovery for bystanders or who are uninvolved with physical harm. This case centers around an incident where Mrs Bourhill claimed that she suffered shock due to the fact that Mr young had a collision with a car around 50 ft away from her while she was exiting a tram car. To be exact, this case took place on the 11 October 1938 where Mr Young was negligently riding his motorcycle along the road, and happen to have a collision with a car fatally injuring him, Mrs Bourhill was leaving a tram car while the collision took place.