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- THEORIES OF CRIMINAL PUNISHMENT
- SOURCES OF LAW
- COMMON LAW ELEMENTS OF A CRIME
- COMMON LAW CRIMINAL OFFENSES
- PARTICIPATORY OFFENCES
- VALID DEFENSES
- THE DIFFERENCES BETWEEN A CRIMINAL CASE AND A CIVIL CASE
- Criminal law defines the crimes committed against the state or against the society as a whole.
- It is enforced by the government, through its prosecutors.
- Criminal procedure decribes the methods through which the criminal laws are enforced.
II. THEORIES OF CRIMINAL PUNISHMENT (les théories des sanctions pénales)
- Deterence (= dissuasion) – It means that the punishment should prevent the same person from committing crimes. The aim is to impose a sufficiant penalty to discourage an offender from criminal behavior.
- Rehabilitation – The aim is to transform an offender into a valuable member of society. Example : psychiatric care.
- Retributive – It means ths offender is punished because he deserves it. The purpose is to make the offender suffer in order to pay for his crime.
- Denunciation – Under the denunciation theory, punishment should be an expression of societal condemnation
- Incapacitation (= incapacité) – The aim is to prevent the offender from committing future crimes because he is removed from society and locked up or restrained somehow. Example : prison.
- Restitution – The aim is to restore to the victime any loss inflicted by the offender.
III. SOURCES OF LAW
The sources of English criminal law are :
- Case-law (= jurisprudence) ;
- Statutes (= textes de lois) ;
- European Community law (= droit communautaire) ;
- The European Convention of Human rights (= Convention européenne des droits de l’Homme).
The sources of US criminal law are :
- Statutory law (= lois) ;
- Administrative regulations (= les règles administratives) ;
- Common law ;
- US Constitution : it is the most important source of law.
The federal government has the power to determine what types of crimes constitue a federal offense.
IV. COMMON LAW ELEMENTS OF A CRIME
A CRIME IS COMPOSED OF 3 ELEMENTS
1. Actus reus – It means a wrongful deed.
To establish « actus reus », it must be proved that a person committed an act prohibited by law.
It can be a physical act (hitting someone) or a failure to act (watching someone being hit).
2. Mens rea –It is the mental element of a crime.
It determines whether the offender committed the criminal deed purposefully or accidentally.
It describes the mental state a person must have been while committing a crime for it to be intentional.
3. Causation – It must be proved that the defendant’s conduct caused the harm.
STRICT LIABILITY (= responsabilité de plein droit) – Some criminal laws, called « strict liability laws », don’t require any « mens rea » at all. The act itself deserves punishment. Many strict liability laws involve minors.
Example : sale of alcohol to minors.
« MALA IN SE » / « MALA PROHIBITA » – Crimes are divided into « mala in se » and « mala probita » laws :
- « Mala in se » means crimes that are deemed evil (= considérées comme graves) because of the nature of the action. These actions are recognized as crimes even if a person has not read the law.
Example : murder, rape (= viol) ;
- « Mala prohibita » means crimes which are wrong because they are prohibited.
Example : parking in a restricted area.
V. COMMON LAW CRIMINAL OFFENSES
Criminal offenses are classified according to their seriousness.
OFFENSES AGAINST THE PERSON
- Homicide – It is the killing of one person by another.
There are different forms of homicide.
Homicide itself is not necessarily a crime. Some homicides are legal, such as a killing in self-defense.
Unlawful homicides are classified as crimes like murder and manslaughter.
Murder is always viewed as a criminal act, it is considered to be « mala in se » because there is the intent to do harm.
- Manslaughter (= homicide involontaire) – It is the killing of one person by another but there is no intention to kill or create a deadly (= mortelle) situation.
Involuntary manslaughter = the death was caused by negligent or criminal behavior of the defendant.
Voluntary maslaughter = the defendant meant to cause harm but not to kill.
- False imprisonment (= séquestration) – It consists in unlawfully restraining a person’s freedom of movement.
Example : kidnapping.
- Offensive weapons – The unlawful possession of offensive weapons is a crime.
- Drug possession – The person who wilfully (= délibérément) possesses illegal controlled substances such as marijuana, cocaine and heroin is committing a crime.
- Infractions (= infractions mineures, petits délits) – It is the violation of an administration regulation, a municipal code or local traffic rule. In many jurisdictions, an infraction is not considered as a criminal offense.
OFFENSES AGAINST PROPERTY
- Larceny – It is a crime in which someone unlawfully takes something which belongs to someone else, with the intent to permanently deprive the owner of his rightful possession.
- Robbery – It is same but it is performed in connection with violence or a threat of violence.
- Trespassing – It is the unlawful entry into the real property of another.
- Burglary (= cambriolage) – It is when someone unlawful entry into the real property of another with the intent to commit a crime once inside.
- Arson (= incendie volontaire) – It is when a person intentionally burns almost any kind of structure, building or forest.Fraud – The main purpose of fraud is to gain something of value by misleading someone into thinking something which the fraud perpetrator knows to be false.
Example : insurance fraud.
- Forgery (= contrafaçon) – It refers to the making of a false instrument with which someone intents to deceive.
OFFENCES AGAINST PUBLIC ORDER
Examples : rioting (émeutes), affray (bagarres), public nuisance.
WHITE COLLAR CRIME (= criminalité économique)
It is a term for non-violent crimes, motivated primarily by personal monetary gain.
It is committed by business people or public officials (= agents publics).
Examples : tax evasion, public corruption.
VI. PARTICIPATORY OFFENCES (= complicité)
Any individual who is involved in any aspect or part of a crime may face criminal charges.
He or she may have offered assistance to the criminal in some way.
Aiding and abetting (= instigateur) are two examples of participatory offenses.
VII. VALID DEFENSES
The following selected valid defenses can be put forward in order to prove the absence of « mens rea » :
- Self-defense – It can be used when a criminal defendant commits a criminal act but believes that he or she was justified in doing so.
The defendant may use reasonable force in order to do so.
- Infancy – It means that the defendant is not subject to criminal prosecution because he or she is too young to commit a crime.
Mistake – Mistakes can be a mistake of law or a mistake of fact.
Mistake of law = it means the defendant believes his or her criminal conduct is legal.
Mistake of fact = it can be a defense when the conduct in question would have been lawful if the facts would have been what they were reasonably thought to be.
For example : you are accused of stealing your neighbor’s table but you did so because you believed it was the one you previously lent him that he never returned to you, then you aren’t guilty of theft.
- Insanity – It means an individual should not be liable for its crime if he or she is not capable of understanding the difference between right and wrong.
- Necessity – It may apply when an individual commits a criminal act during an emergency situation in order to prevent a greater harm from happening.
- Intoxication – It means that because of the intoxication, the defendant did not understand the nature of his or her actions or know what he or she was doing.
The intoxication defense depends on whether the intoxication was voluntary or involuntary.
VIII. THE DIFFERENCES BETWEEN A CRIMINAL CASE AND A CIVIL CASE
- Crimes are offenses against a state or society as a whole ;
- The defendant can be jailed ;
- Crimes must be proved beyond a reasonable doubt ;
- There is almost always a jury ;
CIVIL CASES :
- Civil cases are disputes between individuals ;
- Civil cases are proved by lower standards such as « the preponderance of the evidence » ;
- Civil cases generally result in monetary damages or orders to do or not do something ;
- There is a jury is some instances.
The punishment has to fit the crime (= être appropriée au crime).
- Capital punishment – It may be imposed in some jurisdictions of the US for the most serious crimes.
- Prison – Individuals may be incarcerated in prison.
- Fines (= amendes) – Fines may be imposed.
- Probation – It is the suspension of a jail sentence that gives the opportunity to the offender to remain in the community, instead of going to jail. It concernes a first offense in the less serious cases.
- Community service orders – They require the offender to perform a certain number of hours of unpaid time as reparation to the community.
- Parole (= libération conditionnelle) – It will be granted on the criteria of good conduct and cooperative behaviour with prison life.
– threatens = menace