Legal Transformation of Fault

Ono Academic College, Kiryat Ono, Israel


When a perpetrator voluntarily enters into a situation that requires an insanity, automatism, or intoxication defense to prevent imposition of criminal liability, applying one of these defenses is not necessarily just. For example, if a person drinks alcohol deliberately and subsequently commits an offense, it is not right to exempt him from criminal liability based on the intoxication defense. Modern criminal law solves this problem by transforming the fault that existed at the time when the perpetrator placed himself in a situation that removed his control to the time of the commission of the offense. This is the legal transformation of fault.

4.1 The Function of Legal Transformation of Fault

4.1.1 Basic Structure and Rationale

When an offender commits an offense in a state of insanity, infancy, automatism, or intoxication, the fault itself cannot be consolidated. These states are presumed to prevent the consolidation of fault because they negate the offender’s cognitive or volitive capabilities. Because fault is required for the imposition of criminal liability, if the offender has not consolidated it, no criminal liability can be imposed. The legal consequences of adopting such an attitude ex ante would be catastrophic in social terms. Quite probably, potential offenders would deliberately bring themselves to one of the above situations, most likely intoxication, and plead not guilty.

Knowing that if the offense is committed in one of these states prevents imposition of criminal liability, potential offenders would simply commit it in one of these states. Traditionally, fault is examined at the time the offense has been committed (the time when the conduct has been consolidated).1 But in these situations it would be right to consider that the fault was consolidated when the offender entered the relevant state.

Indeed, it would be right to do so in all cases, if doing so is relevant to the factual or legal questions raised at a given trial. Considering the fault at the time when the offender entered the relevant state moves the time when the fault is examined from the time of the commission of the offense to an earlier time. Nevertheless, in order to impose criminal liability, an adequate fault must still be present at the time when the offense was committed. Therefore, the legal action does not end with the examination of the fault at an earlier point of time, but also involves copying the fault to the later point (the time of the commission of the offense).

This legal action is the transformation of fault. The legal function consists of examining the fault at one point in time and copying it to another point. What is being copied, however, is not the initial fault but a transformation of it. At the first point in time, the object of the fault consists of the entrance into the state of irresponsibility; at the second point in time, the object concerns the facts that form the factual element requirement of the offense at hand. Therefore, the legal function involves not merely the copying of the fault but also its transformation.

For example, A wants to kill B. While fully sober, A deliberately drinks alcohol to achieve the desired mental state for killing B. Shortly thereafter, A kills B in a state of intoxication and pleads not guilty. To impose criminal liability on A, it is necessary to prove A’s fault in the offense. The fault consists of a combination of cognitive and volitive components in relation to the factual elements of the offense (homicide), and the offender argues that at the time when the offense was committed, i.e., when the conduct was consolidated (t2), the required fault could not be consolidated and therefore no criminal liability can be imposed.

But if the court examines the situation at an earlier and yet relevant point of time, the offender is not as innocent as he would like to appear. When the offender has entered the state of intoxication (t1), the cognitive and volitive components were consolidated in the offender’s mind. Two problems arise, however:


the time of consolidation is earlier than the time of the commission of the offense; and



the object of the cognitive and volitive components is not identical with the factual element components.


Both problems find their solution within the transformation of fault.

One of the functions of the transformation of fault has to do with the time axis, as the fault is being transferred from the point when the offender entered the fault-negating state (t1) to the point of the commission of the offense (t2). The assumption behind this transfer is that the fault-negating state (e.g., intoxication) preserves the offender’s accountability for the commission of the offense, so that even if the offender could not have exercised control over the commission of the offense, he controlled the conditions under which the offense was committed and of the way in which it was committed.

For example, if the offender committed homicide while drunk, when the offense was committed (t2) the offender had no control over his conduct, but he did control the conditions for entering into a state of intoxication and he consumed the alcohol voluntarily. When a person consumes alcohol voluntarily, he remains accountable for all consequences of the intoxication. Thus, the function of the transformation of fault is to transfer the fault from the point when the offender entered a state of irresponsibility to the point of the commission of the offense.

Another function of the transformation of fault is the substantive change in the object of the fault. The required fault in the case of the commission of the offense, as part of the mental element requirement, relates to the components of the factual element in a symmetric structure. For example, it is necessary to prove awareness of conduct, of circumstances, etc.2 General awareness has no meaning in criminal law; awareness must relate to a particular object, i.e., the components of the factual element.

In addition to transferring the fault from one point in time to another, its object in both points of time must be identical. But awareness of drinking alcohol does not parallel awareness of stealing. Therefore, for the transformation of fault to be complete, the object of the fault must be metamorphosed so that it matches the mental element requirement. But how can fault in relation to object A be transformed into fault in relation to object B?

This type of change, however, is not rare in criminal law. All presumptions of the mental element requirement are based on such a transformation, the most significant one in this context being the presumption of transferred malice (error in persona, error in objecto), which transfers intent in relation to one object to another.3 This is not the only instance. The presumption of indirect intent transfers awareness of the probability that the results would occur to purpose (specific intent) in relation to the results themselves.4

Thus, the change of object that takes place in the course of the transformation of fault is not exceptional in criminal law; nevertheless, it must be justified because a legal structure should reflect a just premise. The rationale of the change in object relates to the inherent connection between these objects. The commission of the offense, and therefore the components of its factual element, is held to be the consequence of the fault-negating state. Therefore, if the offender had not been intoxicated, no offense would have been committed, and if the offender had not entered this state, the offense would not have been committed.

The same rationale characterizes the mental element presumptions. For example, concerning the transferred malice presumption: if the offender had not intended to commit an offense against A, no offense would have been committed against B. Thus, the change of object together with the transfer in time form the transformation of fault, as illustrated in Fig. 4.1.


Fig. 4.1
The function of the transformation of fault

The European-Continental doctrine of actio libera in causa, discussed above, is an early conceptualization of the idea of transformation of fault. Originally, it referred to two basic types of fault when entering the relevant state: general intent and specific intent. Although actio libera is the “prototype” of the transformation of fault function, it is partial because it does not cover all possible types of fault. For example, if the offender entered the relevant state in a case of negligence, the actio libera would not be relevant. A comprehensive function could be based on the actio libera understandings, but they would have to be widened to cover every type of fault.

The derivative functional questions are when the transformation of fault should be activated and what its consequences are. These questions are discussed below with respect to infancy, automatism, intoxication, and insanity.

4.1.2 Algebraic Insights

The fascinating field of mathematics and law should be explored more thoroughly, especially with a view toward possible applications in mechanizing or computing portions of the law. Mathematical principles can be implemented within the law in order to clarify certain legal principles and reduce the probability of error. At times, legal principles are formulated by induction in ways that are over- or under-inclusive. When these principles are reformulated in mathematical terms, the legal realm becomes wider, clearer, and quite likely more just.

Transformation of fault resembles linear transformation functions, one of the basic instruments in linear algebra. Because transformation of fault relates to fault, we can define the linear space as the space of fault. Therefore, the basis would include the relevant states that span the space: specific intent (v1), general intent (v2), negligence (v3), and strict liability (v4). When the offender has no fault at all, the element of the space is null (0).

The transformation of fault acts as a linear transformation. For example, A had general intent (v2) with regard to drinking alcohol, and negligence (v3) with regard to not taking the medication he uses to control his involuntary reflexes. Therefore:

$$ \mathrm{T}\left({\mathrm{v}}_2+{\mathrm{v}}_3\right) = \mathrm{T}\left({\mathrm{v}}_2\right) + \mathrm{T}\left({\mathrm{v}}_3\right) $$
This means that general intent would be considered with regard to the offense committed under intoxication, and negligence with regard to the offense committed under automatism.

Moreover, A had λ general intents (v2) with regard to the λ glasses of alcohol consumed on different occasions. Therefore:

$$ \mathrm{T}\left({\uplambda \mathrm{v}}_2\right) = \uplambda \mathrm{T}\left({\mathrm{v}}_2\right) $$
This means general intent would be considered for each time the offender offended in a state of intoxication.

If the offender had no fault at the time he entered the relevant state (e.g., involuntary intoxication), no fault is related to the factual element components. Therefore:

$$ \mathrm{T}\left(\underline{0}\right) = \underline{0} $$
A full and accurate transformation of fault (T) would produce an isomorphism. Thus, for each vi there is a different image Tvi, so that the kernel is 0 and nothing but it. Therefore, if:

$$ \mathrm{dimkerT}+\mathrm{dimImT}=\mathrm{n} $$

$$ \mathrm{kerT} = \underline{0} $$
then: ImT spans the fault space (dimImT = n, and T is a surjective function), the null space is 0 (T is an injective function), and T forms an isomorphism. Isomorphism is important because it refers to the legal legitimacy of the transformation of fault. Only if the definition of the transformation of fault forms an isomorphism (no over-inclusions or under-inclusions are possible) is the criminal law just both toward the offender and toward society. Unfortunately, transformations of fault do not produce isomorphism in all legal systems, which can be over-inclusive (e.g., negligence leading to automatism becomes general intent for the factual element components) or under-inclusive (e.g., negligence leading to intoxication becomes no-fault with regard to the factual element components).5

If the legal provisions that form the transformation of fault fail to produce an isomorphism, the algebraic insights described above can suggest ways of correcting and improving criminal law to make it more just.

4.2 Applicability

The transformation of fault may be applicable to all controllable in personam states.

4.2.1 Infancy

Infancy may refer to biological and mental age.6 Unless the offender has found the way of entering a state of infancy by becoming younger or mentally retarded, transformation of fault is irrelevant in this case. As long as one cannot control entering a state of infancy, transformation of fault is not applicable.

This is only one situation of transformation of fault, which refers to the transformation of the offender’s “no fault” in entering the state of infancy (by being born as such) to the factual element components of the offense committed when infant. The result is identical whether or not the transformation of fault function is activated in infancy, but its activation is significant as it makes this function be considered general. If there is a way to control mental retardation by any means, the transformation of “no fault” would not be the only transformation within this function.