It is universally agreed that, in appropriate cases, persons suffering from serious mental disorders should be relieved of the consequences of their criminal conduct. A great deal of controversy has arisen, however, as to the appropriate legal tests of responsibility. Most legal definitions of mental disorder are not based on modern concepts of medical science, and psychiatrists accordingly find it difficult to make their knowledge relevant to the requirements of the court.
Various attempts have been made to formulate a new legal test of responsibility. The American Law Institute’s Model Penal Code has endeavoured to meet the manifold difficulties of this problem by requiring that the defendant be deprived of “substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law” as a result of mental disease or defect. This resembles the Soviet formulation of 1958, which required a mental disease as the medical condition and incapacity to appreciate or control as the psychological condition resulting from it. The same may be said of the German law, although the latter includes in mental illness such disorders as psychopathy and neurosis in addition to psychoses and provides for various gradations of diminished responsibility. Several U.S. Jurisdictions, including federal law, have abandoned the volitional prong of the insanity test and returned to the English rule laid down in M’Naghten’s Case, 8 Eng. Rep. 718, 722 (1843). According to that case, an insane person is excused only if he did not know the nature and quality of his act or could not tell right from wrong. The English Homicide Act of 1957 also recognizes diminished responsibility, though to less effect. The act provides that a person who kills another shall not be guilty of murder “if he was suffering from such abnormality of mind ... as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing”. The primary effect of this provision is to reduce an offense of murder to one of manslaughter.
Intoxication is usually not treated as mental incapacity. Soviet law was especially harsh; it held that the mental-disease defense was not applicable to persons who committed a crime while drunk and that drunkenness might even be an aggravating circumstance. In German law, on the other hand, intoxication like any other mental defect is acceptable as a defense in criminal cases.
The law generally recognizes a number of particular situations in which the use of force, even deadly force, is excused or justified. The most important body of law in this area is that which relates to self-defense. In general, in Anglo-American law, one may kill an assailant when the killer reasonably believes that he is in imminent peril of losing his life or of suffering serious bodily injury and that killing the assailant is necessary to avoid imminent peril. Some jurisdictions require that the party under attack must try to retreat when this can be done without increasing the peril. Under many continental European laws, however, the defendant may stand his ground unless he has provoked his assailant purposely or by gross negligence, or unless the assailant has some incapacity such as infancy, inebriation, mistake, or mental disease. Other situations in which the use of force is generally justifiable, both in Anglo-American law and in continental European law, include the use of force in defense of others, law enforcement, and protection of property.
The use of force may also be excused if the defendant reasonably believed himself to be acting under necessity. The doctrine of necessity in Anglo-American law relates to situations in which a person, confronted by the overwhelming pressure of natural forces, must make a choice between evils and engages in conduct that would otherwise be considered criminal. In the often-cited case of U.S. v. Holmes, in 1842, a longboat containing passengers and members of the crew of a sunken American vessel was cast adrift in the stormy sea. To prevent the boat from being swamped, members of the crew threw some of the passengers overboard. In the trial of one of the crew members, the court recognized that such circumstances of necessity may constitute a defense to a charge of criminal homicide, provided that those sacrificed be fairly selected, as by lot. Because this had not been done, a conviction for manslaughter was returned. The leading English case, Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884), appears to reject the necessity defense in homicide cases. In German or French courts, however, the defendants would probably have been acquitted.
In general the use of force may be excused if the defendant reasonably believed himself to be acting under duress or coercion, or to be carrying out military orders believed by the defendant to be lawful.
Vocabulary
acquittal – оправдание; судебное решение об оправдании; оправдательный вердикт, приговор; освобождение (от ответственности); уплата, погашение (долга)
ambiguous – сомнительный, неопределенный, неясный, двусмысленный
apprehension – задержание; арест; опасение, подозрение
assailant – нападающий, напавший ; субъект (преступного) нападения
breach – нарушение (права, закона, договора, и т.д.); часть искового заявления, излагающая нарушение обязательства ответчиком ; разрыв (отношений)
bribery – дача или получение взятки, взяток; взяточничество
coercion – принуждение; ограничение (свободы); насилие
controversy – спор; разногласие; правовой спор; судебный спор; гражданский процесс; предмет спора
conviction – убеждение, убежденность; осуждение; судимость; шотл. обвинительный приговор (судьи, рассмотревшего дело вместо суда присяжных)
deterrence – удерживание от совершения действий устрашением; средство удерживания (устрашением) от совершения действий
diminished responsibility – уменьшенная (частичная) вменяемость
disorder – психическое расстройство; психическое заболевание
duress – принуждение
extradition – выдача (преступника), экстрадиция
felony – фелония (категория тяжких преступлений, по степени опасности находящаяся между государственной изменой и мисдиминором)
forgery – подлог или подделка документа
gross negligence – крайняя небрежность
heinous – гнусный, отвратительный, плохой, противный, ужасный
homicide – лишение человека жизни; убийство
imminent – надвигающийся, близкий, грозящий, нависший, неотвратимый, неизбежный, неминуемый (об опасности и т. п.)
infancy – несовершеннолетие
jeopardy – риск; риск понести уголовную ответственность
law enforcement – правовое принуждение; правоприменение; применение закона; амер. полицейское правоприменение; амер. полиция (патрульная)
manslaughter – простое (без злого предумышления) убийство
mitigation – смягчение, уменьшение
offender , lawbreaker – правонарушитель; преступник
offense ( offence ) – посягательство, правонарушение, преступление
omission – упущение, бездействие, халатность
peril – риск; опасность
probation – пробация, система испытания (вид условного осуждения)
retribution – воздаяние, возмездие, кара, наказание, расплата
retroactive – имеющий обратную силу
sentence – приговор (к наказанию); наказание (по приговору)
somnambulist – лунатик, сомнамбула
suspended sentence – приговор или наказание, отсроченные исполнением; отсрочка исполнения приговора или наказания
theft – кража
to abandon – отказываться (напр, от права, притязания ), оставлять
to commit – совершать (действие); поручать; вверять; обязывать; передавать на рассмотрение; предавать суду; заключать под стражу
to condemn – осуждать, приговаривать (к смертной казни); присуждать
to deter from – удерживать от совершения чего-л. (с помощью средств устрашения)
to endeavour – предпринимать; пытаться; покушаться, посягать
to entice – соблазнять; переманивать
to expiate – искупать; заглаживать (вину)
to instill – прививать, вселять, исподволь внушать
to mete out – отмерять, распределять; определять, назначать (награду, наказание)
to predicate – утверждать, объявлять, делать заявление
to prosecute – вести; продолжать; проводить; искать в суде; преследовать в судебном порядке; поддерживать обвинение, обвинять
to surrender – сдавать(ся); капитулировать; выдавать (преступников); признать себя в суде несостоятельным должником; отказываться (от права); препровождать (обвиняемого в суд)
treason – измена (государственная)
valid – юридически действительный, имеющий силу; правомерный
voluntary – добровольный; намеренный; сознательный; умышленный
LESSON 6
GRAMMAR: FUNCTIONS OF THE VERB “TO HAVE”
TEXT A: TYPES OF CRIMES
TEXT B: HOW ARE CRIMES CLASSIFIED?
FUNCTIONS OF THE VERB “TO HAVE”
Глагол “to have” имеет формы:
Настоящее время: have , has
Прошедшее время: had
Будущее время: shall have, will have
Этот глагол может быть: смысловым глаголом, вспомогательным глаголом для образования перфектной группы времен, модальным глаголом, выражающим долженствование.
1. Смысловой глагол :
e.g. We have lectures and seminars every day.
We had an interesting lecture on Criminal Law yesterday.
Tomorrow we shall have three lectures.
2. Вспомогательный глагол :
e.g. We have passed some credit tests.
They had discusses this question when I came.
We shall have passed all our exams by August.
3. Модальный глагол :
e.g. As I do not know English well I have to work hard to pass it.
As I made many mistakes in my test I had to rewrite it.
As he is ill he will have to take exams with another group.
Task I. Read and translate the sentences paying attention to the functions of the verb “to have”:
1. I had to do a lot of homework yesterday. 2. Mike had to write this exercise at the Institute, because he had not done it at home. 3. I have not translated the text. I shall have to translate it on Sunday. 4. She has a lot of work at home, she will be busy tomorrow. 5. Will you have to get up early tomorrow? 6. She had to stay at home because she didn’t feel well. 7. When my parents have free time they go to the park. 8.We had no meeting last week, we shall have to hold it next week. 9. Have you any relatives at home?
Task 2. Make the following sentences negative and interrogative:
1. You have to pass examinations twice a year. 2. He had to read this book by Friday. 3. She will have to telephone her tutor and ask for advice. 4. She had to work hard to pass her examinations successfully. 5. You have to stay in bed until your cold is over. 6. They had to build the new building of the hostel by last summer.
TEXT A
Before reading the text 1) learn to pronounce the following words correctly:
| [o:] authorize former disorderly assault | [o] property wrong robbery constitute homicide | [i] distinguish division | [i:] misdemeanor unique |
| [æ] categorize characterize category manslaughter battery | [e] offense death threat possessor | [ai] type fine | [ ] another structure punishable |
| [a:] larceny arson | [ә:] burning burglary murder | [ju:] human |
2) read and translate the following groups of words, define their part of speech:
to offend, offender, offence; distinct, distinctive, distinction; felon, felony, felonious; to consider, consideration; law, lawyer, lawful, lawfulness, unlawful, unlawfulness; character, to characterize, characteristic; just, to justify, justification, justifiable.
TYPES OF CRIMES
The offences may be divided into two categories: crimes against the person and crimes against property. We also should distinguish between offences known as felonies and misdemeanors. Felonies are usually offences punishable by sentences of more than one year in state or federal prisons. Misdemeanors are offences punishable by sentences up to one year, usually in a county or local jail. Offences of either types may also be punishable by fines.
In addition to the distinction between felonies and misdemeanors, we may categorize crimes as malum in se – acts which are wrong in and of themselves, or malum prohibitum – acts which are wrong because they are prohibited. Examples of the former include most crimes against the person (murder, rape, battery) and some property crimes (burglary for example). Examples of the latter include the use of marijuana, tax evasion and disorderly conduct.
Crimes against person are: homicide (murder, manslaughter) assault and battery, forcible rape, other sex offences, and robbery. Crimes against property are: theft or larceny, burglary and arson.
Homicide is generally considered to be the most serious felony. The term refers to the killing of a human being and it is often thought to be synonymous with murder, but murder is only one category of homicide. Murder occurs when one human being is killed by another without lawful justification and with malice aforethought. Manslaughter is unlawful homicide committed without malice aforethought.
All crimes against person do not result in the victim’s death. The unlawful application of force by one individual against another may constitute a battery, and the attempt or threat to commit a battery may constitute an assault.
Robbery is unique in that it may be characterized as both a crime against the person and a crime against property. Robbery involves taking property (theft) from another person by force or threat of force.
Crimes against property are: theft, burglary and arson. Theft occurs when one obtains unauthorized control over the property of another with the intent to deprive the possessor of the property. Burglary involves breaking into and entering the dwelling of another with the intent to commit a felony. Arson poses a serious threat to both human life and property. Arson involves the willful an unlawful burning of a building or structure.
TASKS
Task 1. Read and translate the following word combinations:
crimes against property, different types of offences, the distinction between felonies and misdemeanors, acts prohibited by law, property crimes, tax evasion, disorderly conduct, the killing of a human being, without lawful justification, malice aforethought, unlawful application of force, the attempt or threat to commit a battery, unauthorized control over the property, the intent to commit a felony, the willful burning of a building, to punish by fines.
Task 2. Match the following:
| malice | by fines |
| to punish | evasion |
| to commit | aforethought |
| acts | application of force |
| threat | prohibited by the law |
| unlawful | lawful justification |
| without | to commit a felony |
| tax | a felony |
Task 3. Match the terms with their definitions:
| Manslaughter | the intention to seriously harm someone or commit serious crime. |
| Malice aforethought | an act that creates in one person the reasonable fear of being battered by another, by reason of threat or attempt to batter. |
| Battery | an unlawful homicide committed without malice aforethought. |
| Robbery | an intentional unprovoked harmful physical intent by one person with another. |
| Assault | the illegal taking of property from another by force. |
Task 4. Read and translate the sentences paying attention to the functions of the verb “to have”:
1. The lower chamber has passed the bill and it went to the upper chamber. 2. We shall have a lecture on Criminology next Monday. 3. During the cold war Europe had to choose between another war or peaceful coexistence. 4. Informal rules have very little to do with the laws created by governments. 5. English law has developed through decisions in individual cases. 6. The system bases on English Common law has been adopted by many Commonwealth countries and most of the US. 7. Versions of Roman law had long influenced many parts of Europe but had little impact on English law. 8. Many customs have existed since “time immemorial”. 9. In Greece each city had its own law. 10. French public law has never been codified.
Task 5. Read and translate the sentences:
1. The term organized crime describes social framework for the perpetration of criminal act usually in such fields as gambling, narcotics and prostitution, where a service the public desires is illegal.
2. Upperworld crimes are violations committed in the business world (for example, tax evasion or price fixing).
3. Visible crimes – offenses against persons and property, usually committed by lower class person, often referred to as “street crimes or ordinary crimes”, these are the offenses most upsetting to the public.
4. Political crimes include such crimes as treason, rebellion and espionage that are viewed as threats to the government.
5. Crimes without victims – offenses in which there is a willing and private exchange of goods and services for which there is a strong demand but which are illegal.
6. Statutes are laws passed by legislatures.
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