Monday, June 11, 2007

Context of the law

Bar tip:

"Know the context (of the law) because if you know the context you can always explain it in your own terms."


Tags: Bar Tips

Thursday, June 7, 2007

Mens Rea Doctrine in Criminal Law

A most common source of confusion among students in the study of criminal law arises in distinguishing one related crime from the other. A student of criminal law for example may find it hard to determine with the facts given of a person firing a gun in public if the crime is "alarms and scandals" or "illegal discharge of firearm." Here you have one same act which could be under either crime. The key here is understanding the doctrine of Mens Rea.

According to Ortega, the technical term mens rea is sometimes referred to in common parlance as the gravamen of the offense. He says: "In criminal law, we sometimes have to consider the crime on the basis of intent. For example, attempted or frustrated homicide is distinguished from physical injuries only by the intent to kill. Attempted rape is distinguished from acts of lasciviousness by the intent to have sexual intercourse. In robbery, the mens rea is the taking of the property of another coupled with the employment of intimidation or violence upon persons or things; remove the employment of force or intimidation and it is not robbery anymore."

Going back to our example therefore, the crime is alarms and scandals if the firearm when discharged was not directed to any particular person; illegal discharge of firearm if the firearm is directed or pointed to a particular person when discharged but intent to kill is absent.
Another situation when mens rea applies is most common in the Philippines, the karaoke singing late at night. When do those pesky singing neighbors of yours get to be held liable for alarms and scandals under the paragraph "disturbing the public peace while engaged in any other nocturnal amusements?" Again we look at gravamen of the act. If the loud singing was actually meant to particularly disturb or spite you, the crime is unjust vexation.

May protesters in a rally be held liable for alarms and scandals? Again, mens rea. Even if the activity caused incovenience or disturbance to the public, if it was done in good faith as an exercise of freedom of speech and to air grievances against government policy, then there is no crime. But if clearly the intention of the protest was principally to instigate or initiate a disorderly meeting or gathering offensive to another or prejudicial to public peace, then a crime is committed.

Tags: Criminal Law


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