CRIME AND THE CRIMINAL
A collectivity of people known as a society typically operates within a particular ideal code of normative behavior called culture. A member of a society is invariably granted enormous latitude as to the actions in which he permissibly engages. Beyond this range of "free" action, however, other behavior is detected and brought to public attention, it might result in the imposition of social sanctions, the nature and seriousness of which will depend \ipon the nature of the harm. For violations of minor social rules, moderate punishments are incurred; the violator of somewhat more important societal values, or mores, perhaps because his deviant behavior might be injurious to others, is likely to be more seriously penalized. Still more serious are forms of behavior considered so reprehensible and threatening that members of the community are explicitly and formally prohibited from engaging in them. In civilized societies, such prohibitions usually take the form of criminal codes.
Under these conditions the prohibited action (the crime) is described in detail and the punishment made explicit, and various personnel become occupationally involved within an institution of law enforcement and are assigned the tasks of detecting, apprehending, convicting, and punishing the culpable offender. The blameworthy perpetrator of a crime, once his guilt has been established within the current system of criminal procedure, is defined as a criminal and made to suffer some established form of punishment.
Generally, it has been held that a crime is any act or omission prohibited by law and punishable by the state in judicial proceedings. More specifically, in Anglo-Saxon law, there? are five necessary theoretical elements in a crime:
7. The act must involve a conscious, voluntary, external harm. Nevertheless, thevomission or neglect of legal duties will still meet this criterion. .Additionally, simply conspiring to commit a crime and soliciting someone to. engage in a crime are themselves misdemeanors under the common law.
The act must have been legally prohibited at the time it was committed. In effect this means that if some heartless legislature decided today to make kissing a misdemeanor, kisses committed before the passage of this law could not be made criminal offences and would not be punishable under the law.
8. The perpetrator must have had criminal intent (metisreei) when he engaged in the crime. If the criminal act was "wilful, wanton, or done with malice", the law assumes that criminal intent was present. It must be kept in mind that if mens rea was lacking, the actor cannot be found to be a criminal; it might even be argued, that in this circumstance the act itself was not a crime. The assumption of mens rea is sometimes dif- ficultforsomeoneother than a legal philosopher to comprehend.
There are several conditions under which the law assumes that criminal intent does not and cannot occur. If the actor is below the age of culpability (under the common law this was seven years, but some statutory enactments have raised the age to ten years or more), if he is judged to be insane, if he was coerced into committing the act, or if the act is probably accidental, mens rea is deemed to be lacking; the actor is not a criminal, then, and the acts themselves are probably not crimes.
9. There must be a causal relationship between the voluntary misconduct and the legally forbidden result. Only rarely does this requirement pose any problem. -
10. There must be some legally prescribed punishment for anyone convicted of the crime. These punishments can range enormously from suspended sentences and fines to life imprisonment and the death penalty. ч
The proscribed actions that are considered crimes obviously vary not only from one jurisdiction to another but also from one time period to another. In Biblical times,1 for example, the Mosaic code 2 regarded the following as capital crimes: violating the Sabbath,3 cursing one's parents, eating leavened bread during Passover,4 and oppressing the widowed and fatherless. To call these acts crimes may now seem completely absurd: yet over 2,000 years later, in colonial America, a Quaker 6 found living in the Massachusetts Bay Colony and persons caught trading with Indians in the Virginia'colony were executed as capital offenders.
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