Some issues of guilt in US criminal law

As rightly noted by experts in comparative law, between the various systems of criminal law in fact there is much more in common than we usually assume. In order to reveal this, one should distract from particulars and linguistic diversity … [6, p. eight].

In this vein, the structure and content of the institution of guilt in the criminal law of the United States is of scientific and practical interest, especially given the relatively recent codification of criminal law in this country, which was initiated by the American Law Institute by adopting a draft US Criminal Code on 4 May 1962.

The structure of a crime in the criminal law of England, the United States and other countries of the Anglo-Saxon legal system is a system of signs characterizing a crime from both the objective and the subjective side. These components are designated as actus reus (illegal action (lat.), Objective element) and mens rea (intention to cause harm (lat.), Subjective element), respectively.
Mens rea can be defined as relevant for the purposes of criminal law, a moral attitude deserving moral censure, characterized by intention, carelessness or negligence in relation to the objective elements of a criminal act [1, p. 131].

Currently, in the United States, in most state criminal codes, four forms of guilt are distinguished:
– for the purpose when the person acts to achieve this particular result;
– with the consciousness of a high degree of probability of a result that is not the goal of the behavior;
– negligence, as ignoring significant and unjustified risk;
– negligence, as the failure to recognize the likelihood of harmful consequences, with the need for such awareness [4, p. 27].

By fixing the requirement for voluntary acts, as a psychological component of a crime in the Model Code (Article 2.01, part 1, section 2), the American legislator established the principle of innocence of committing an offense if its responsibility is not based on conduct that includes voluntary action or voluntary not performing actions that it is physically capable of performing. The authors of the Penal Code of the State of New York went in a similar way (section “B”, article 15, par. 15.00) [5, p. 82].

The principle of voluntariness is to some extent comparable with the principle of guilt, enshrined in Art. 5 of the Criminal Code of the Russian Federation (hereinafter the Criminal Code of the Russian Federation), with the only difference that voluntariness and guilt are different in terms of scope. As is known, the forms of guilt under the laws of the Russian Federation include intellectual and volitional criteria, while the meaning of the word “voluntariness” implies a discussion of the question of freedom or lack of freedom of will, without mentioning the intellectual component.

However, from the analysis of part 2 of the same article of the US Model Code, it can be concluded that, in fact, the concept of voluntariness includes an intellectual criterion, which follows from a direct reference to paragraph “d”, according to which voluntary movement is not other reasons are not the result of the efforts or decisions of the leader, undertaken, or accepted consciously or out of habit [2, p. 48].

Moreover, in art. 2.02 Part 1 of the Model Code, it is established that a person is not guilty of committing an offense, if he did not act in order, knowingly, recklessly or carelessly. In part 2 of this article, the concepts of four types of guilt are disclosed, and therefore it is possible to compare the latter with the types of guilt of the Criminal Code of the Russian Federation in structure and content.

It should be noted that the American legislator, while structuring the system components of the types of guilt, went exactly along the way, when the structure of guilt, as a sequence of intellectually volitional processes, follows, first, as the realization of the need for a “material object” with a certain intellectual and volitional attitude. At the same time, according to the Criminal Code of the Russian Federation, types of guilt are legislatively structured, as awareness or not awareness of harm, and then, as his desire or unwillingness, which contradicts the actual course of goal-setting, as a sequence of physical and mental processes.

So n. “A” Part 2 of Art. 2.02 – “For the purpose” of the Model Code (Section “B”, Article 15, Par. 15.05 p. 1 of the Criminal Code of the State of New York) is similar to the meaning of direct intent under the Criminal Code of the Russian Federation.

According to him, the “material element” (harm) is the result of a conscious goal as the implementation of conceived behavior or the infliction of such a result [2, p. 48; 5, s. 83]. It is clear that such a construction of guilt directly provides for the intended purpose, desirable as a result of their behavior. The difference with the direct intent of the Russian Criminal Code consists in the absence of an indication of the inevitability or possibility of the intended result, which in our opinion is quite true, since the alternative conceived in the formula “will necessarily come” or “may not occur for some reason” of any legal meaning really does not carry.

Set out in paragraph “b” Part 2 of Art. 2.02 of the Model Code – “Obviously” (Section “B”, Article 15, Par. 15.05 p. 2 of the Penal Code of the State of New York) as a type of guilt, is comparable to indirect intent under the Criminal Code of the Russian Federation. The person is aware that his behavior will almost certainly cause such a result, which corresponds to the intellectual criterion of indirect intent “may cause.” However, the legislative structure of this clause of the Model Code does not contain an indication of a strong-willed element — whether it wishes or knowingly permits the alleged harm, which, in our opinion, somewhat erodes the content of the legislative construction of this type of guilt.

At the same time, paragraph “c” of Part 2 of Art. 2.02 of the Model Code – “Recklessly” (Section “B”, Article 15, Par. 15.05 p. 3 of the Criminal Code of the State of New York), not coinciding with the text of levity under the Criminal Code of the Russian Federation, is quite comparable with the proposed interpretation of the content and structure of levity stated in the Russian criminal law, as an acceptable risk in meeting a specific need. In particular, from this paragraph it follows that a person consciously neglects the substantial and unjustified risk that the aforementioned material element (harm) exists or will arise as a result of his (person’s) behavior.

The proposed construction clearly shows the presence of an intellectual and strong-willed element of this type of guilt – the conscious anticipation of the possibility of harm, its reluctance, but the assumption of risk as the necessary quality of its actions in achieving a certain goal.

Set out in paragraph “d” Part 2 of Art. 2.02 of the Model Code – “Recklessly” (Section “B”, Article 15, Par. 15.05 p. 4 of the Criminal Code of the State of New York), the said article “Negligence”, is also quite comparable in meaning to the content of negligence under the Criminal Code of the Russian Federation: acts carelessly in relation to the material element of encroachment in cases where it should be aware of the substantial and unjustified risk that the said material element exists or will arise as a result of its behavior. ”

As can be seen from the content of the negligence design, the American legislator has quite clearly indicated its objective criterion, as the obligation of the subject in this particular case to foresee the possibility of occurrence of harm as a consequence of his action, which corresponds to the similar criterion set forth in Art. 26 of the Criminal Code.
Further, the text of the Model Code sets out the signs of a subjective criterion of negligence as “taking into account the nature and purpose of the worker’s behavior, as well as the circumstances that are known to him, not realizing his person includes a gross deviation from the standard of caution, which a reasonable person would follow in the person’s place” [2, p. 49].

From our point of view, the reference of the American legislator to the “reasonable face” is not something unreasonable and worthy of serious criticism. It quite fits into the semantic scope of instructions in the Criminal Code of the Russian Federation on the presence of the “opportunity” of a figure to foresee harm in this particular case, and is determined by the court on the basis of the circumstances established in a particular criminal case. If it is even possible to criticize the wording “the behavior of a reasonable person”, then it would be interesting to find out from critics how the court should be guided when deciding whether there is a lack of direct normative prescriptions and instructions to the behavior when negligence is not related to the legal established regulated function figure and is a special case of everyday behavior.

We believe the term “reasonable person” is undeniably similar to the term “with due care and forethought” in Art. 26 of the Criminal Code of the Russian Federation, which in any case is an appeal to a reasonable person with sufficient care and forethought. In this case, we believe both the American and Russian courts are forced one way or another, when analyzing the possibility of foreseeing harm, to proceed from the average mental and physical abilities of a person, taking into account his training, education, etc. After all, the legislatively fixed clear criteria for determining “reasonableness” or ” Due diligence and prudence ”is not in the US legislation, and the Russian Federation. The way of presenting essentially the same content of the norm is different for an obvious reason for differences in language, mentality, etc.

The whole difference in the interpretation of the subjective criterion of negligence in the legislative and law enforcement technique of Russia and the United States lies in the fact that the Russian legislator has delegated the right to determine the “availability of opportunity” to the courts, without trying to regulate it legislatively. While the US legislator, trying to focus the courts on the general vector in this matter, made such attempts.

Bibliographic list

1. Esakov GA. Criminal law of foreign countries: studies. manual / G.A. Esakov, N.E. Krylova, A.V. Serebrennikov. – M.: Prospectus, 2009. – 336 p.
2. Sample US Penal Code. The official project of the Institute of American Law. from English A.S. Nikiforova; by ed. B.S. Nikiforov. – M.: Progress, 1969. – 303 p.
3. Criminal Code of the Russian Federation: Feder. Law of June 13, 1996 No. 63-FZ (as amended by the Federal Law of July 6, 2016 No. 375-ФЗ) // Coll. legislation of the Russian Federation. – 1996. – № 25. – Art. 2954.
4. Criminal legislation of Russia and the countries of the APR: a comparative study / ed. A.I. Korobeev. – Vladivostok: Far East. Univ., 2008. – 272 p.
5. Penal Code of the State of New York. Entered into force on September 1, 1967 // Penal Law of the State of Nev-York, 1983-84, N. Y. Gould Publication. US criminal law. Collection of regulations / comp. I.D. Kozochkin. – M.: University of Friendship of Peoples, 1986. – 197 p .; New York State Law. Penal Law [Electronic resource]. – URL: (appeal date 10.10.16).
6. Fletcher J. Basic concepts of modern criminal law / J. Fletcher, A.V. Naumov. – M.: Yurist, 1998. – 512 p.

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