Law in Contemporary Society

Not So Evil Criminals

-- By SunYi - 14 Feb 2008

It is said that crime is done by an evil mind through an evil hand. This saying is both useful and deceitful. It points out the two important elements of culpability: mens rea and actus reus, intent and action. But the culpable mind and conduct are not necessarily bad or evil. Also, when facts difficult to discover and history difficult to re-construe, when evil or not evil did not have a clear line between them, social stigma probably should not be attached to criminals any more. The criminals are not so evil.

Evil Hand

Voluntary v. Involuntary

Usually actus reus refers to an voluntary and active movement. However, the distinction between voluntary and involuntary, action and inaction are both artificial and arbitrary. Judges often find that when taking the crime as a an event occurred in a single point of history, the conduct is involuntary (e.g. a driver violated the speed limit law because of the failed cruise control); if the event is perceived to be longer, then it becomes voluntary (the driver chose to drive); however, if the event is to be construed long enough, it might turn to be involuntary again (the driver did not have enough time or resources to check on his car regularly).

  • But there's no required state of mind, even as to voluntariness, with respect to the speed limit. Your example doesn't seem to do what you want it to do. Perhaps you should have used a traditional example (sleepwalking, epilepsy, or the like, in relation to an offense requiring voluntarity, like assault).

Action v. Inaction

Actus reus also requires one to engage in some active conduct. For example, euthanasia is illegal in most part of the country. If a doctor gives a patient pills to end his pain and suffering, the doctor would be guilty of homicide, even with the consent of the patient and his family. However, a doctor is not a criminal if he disconnects the breathing machine or pulls off the nutrition tube, although the patient dies as a result. The reasoning is that in the cessation of life support measures by the doctor is not an affirmative act, but rather a withdrawal or omission of further treatment. In a word, what the doctor does is inaction.

  • Hadn't you better look a little more closely at this example, too? Refusing treatment, or discontinuing treatment over the objections of those with power to decide, would most certainly lead to liability, and that liability could indeed be criminal. The problem I am having is that the ideas you are presenting are correct, even familiar, and the only things you are adding to those ideas, namely your examples, are sloppy to the point of inaccuracy.

I think that the distinction of action and inaction in this kind of cases is very unsatisfactory. It can be argued that in both situations, the doctor has acted upon the patient. I think the different treatment of the two behaviors can be better explained. The court is weighing two important values here. On the one hand is human life. On the other hand are the patient’s pain, his family’s suffering, and the financial burden upon the society. By distinguishing between the two actions, the court is trying to strike a balance between these two values. It has nothing to do with action or inaction. Yet we continue using actus reus to describe these cases.

  • This might be true in the second example, but it isn't true in the first. In the second it is truer if one misstates the law than if one takes it in its totality. In short, I think you are mostly observing a phenomenon of your own creation, although any good book on criminal law theory would have afforded a number of illustrations that would better have served your turn.

Evil Mind

Mens rea refers to a culpable mind. However, evil action can be seen, but evil mind cannot. We do not know much about people’s mind. The development of psychology again and again confirmed that human’s mind is very complex and complicated. Also, people often change their minds without telling other people, showing any signs or their own conscious awareness. We do not even know exactly our own thinking at one point of time, then how do we decide for others what their mental states were?

If both culpable intent and action are established, it is an easy case. But what if one element is missing? People say they did it but they didn’t mean it. Is action alone enough? There are some crimes that use strict liability and essentially relax the mens rea requirement. In these situations, I doubt it is justified to attach social stigma to those so-called “criminals.” Sometimes, one wanted to do something, but never did. In fact, sometimes, people sincerely wish something bad to happen to some other people. Isn’t that wrong? Or doesn’t that seem more wrong than a criminal conduct without intent? Also, probably a number of people have both culpable intent and action, but they never got caught. They are not “criminals,” but shouldn’t they be? If some people are deemed to be criminals, not only because they did something bad or break rules, but also because they did not keep it secret enough or they were out of luck, they were probably not that evil, or at least not more evil than the non-criminals after all.

  • Hence the appeal of the jury. If you had followed the path of the idea here, rather than Roshomonizing in the direction of "What is truth?" you would, I think, have gained insights to present to the reader.

Evil Person

When a crime is committed, often a wrong has been done. How to correct it? A natural response is to punish the wrongdoer. But who is he? To find out the truth of a crime, people have tried many different methods, but none gave a satisfactory result. It is the Rashomon story where everybody has his own version and perspective—everyone is innocent and nobody is guilty. It is almost impossible to re-construe history as it truly happened. If we admit that, we can no longer be sure that the people who we condemned deserve the condemnation. They probably did not think or do any evil, but were just out of luck.

  • What licenses "probably"? How did you decide which way the odds face, on the basis of such a schematic rendition? Policemen and prosecutors both apply filters to the situation, making decisions to arrest and decisions to prosecute, which would seem to bear on the situation, but you make no reference to them.

Evil or not Evil

Even there is a machine that can read people’s mind accurately and another machine can watch everybody’s conduct continuously, who can decide what is evil and what is not? It is said that what is crime is determined by community morality, but sometimes there are big differences in people’s attitude toward one behavior. Law should be aligned with the lowest standard, some people argue, because we do not want to punish too many people. Some say law should be designed to uphold the highest moral standard, because it will encourage people to become more moral. Yet there are some criminal laws that have little to do with morality.

  • You are here making everything turn on your construction of a Latin adjective. You could just as easily have turned "evil" into "blameworthy," which would reveal the circularity of the whole enterprise: we punish what is blameworthy, and what is blameworthy is what we punish. The problem of "evil" here is not the law's problem, it's a problem of your own introduction. You might prefer the issue of responsibility to the issue of blameworthiness, and I might be with you for that matter, but the attempt to make the criminal law a system of law against evil is, from a realist point of view, doomed.


In our society, criminals are perceived as evil and dangerous people who deserve punishment. However, because the line between crime and non-crime is often drawn arbitrarily and it is often very difficult to re-construe the situation when crime occurs, the society should hesitate in punishing criminals. Some criminal wrongs should be treated as civil wrongs. Bad things happen, not necessarily because of evil.

  • This seems to be the jumping-off point for an essay, rather than one's conclusion. Why not try another draft that starts where this one ends?


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r3 - 12 Jan 2009 - 23:08:00 - IanSullivan
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