Tangential In Personam General Defenses in Criminal Law and Their Implications for Insanity

The principal legal basis for the emergence of the infancy defense in its modern shape is Roman law. In the ancient East, the extended family was considered one legal unit, and the father of the family was expected to enforce the law within the family. For these reasons, the laws of the ancient East do not include explicit provisions concerning the infancy defense. Although provisions regarding inter-family relations are present, they do not necessarily relate to infants or minors. For example, law 169 of the Hammurabi Code relates to the first offense of a son, which should be forgiven by the father, but no age of the son is mentioned.¹ Law 195 prohibits hitting the father, but again, the age of the son is not mentioned.²

At the beginning of the fourth century ce, Roman law determined the minimum age for criminal liability. The age was set to 7 years,³ for the inclusive presumption that under the age of 7 no person is capable of consolidating the fault required for the imposition of criminal liability.⁴ The age of 7 was chosen based on life experience and on the typological value of the number seven in the pre-Roman cultures, which were assimilated into Roman law. The offender under the age of 7 was considered incompetent to stand trial (doli incapax)⁵ and therefore not subject to criminal liability.

Beyond that age and until sexual maturity, a relative legal presumption (praesumptio juris tantum) prevailed, according to which the offender was incapable of consolidating the required fault until sexual maturity. Based on the examination of the offender’s mental state, this presumption could be refuted,⁶ however. When the offender became sexually mature, the presumption no longer applied. The infancy defense not only exempted the offender from criminal liability, but also protected him from torture.⁷ These Roman insights remained in effect for centuries in most legal systems.

Early English common law did not accept infancy as a general defense. The common praxis was the granting of amnesty to the juvenile offender ex post, after the conviction.⁸ In the tenth century, it was determined that no capital penalty was to be imposed on offenders under the age of 15 years, unless the offender attempted to escape or refused to turn himself in to the authorities.⁹ At the beginning of the fourteenth century, Roman law gained influence over English law through Cannon law, and the age of 7 was determined as the minimum age for criminal liability.¹⁰

A problem arose about determining the offender’s age without formal registration of birth dates. This was solved through presenting questions to the offender and forming an impression based on the answers.¹¹ Thus, English common law referred in practice to the mental rather than the biological age of the offender. Formal registration of dates of births and deaths began in 1538 and became mandatory in 1603.¹² Therefore, until 1603 the legal situation was balanced, and no criminal liability was imposed on offenders who lacked the cognitive capability to consolidate the required fault, even if they were biologically beyond the minimum age. This changed with formal registration.

In 1338, English common law has ruled, based on Roman law, that children above the age of 7 were incompetent for purposes of criminal liability, but the presumption was refutable.¹³ The court, however, did not set an upper age limit for applying the presumption. In the third quarter of the seventeenth century, the upper age was defined as 14 years, paralleling the age of marriage (the minimum marriage age for girls was 12 and for boys 14).¹⁴ To form a uniform age for criminal liability, the age was set at 14 for both boys and girls. Offenders older than 14 years were considered as adults for purposes of both criminal liability and capital penalty.¹⁵

Thus, English common law created three main age groups for the imposition of criminal liability:

These age groups, which were accepted in English common law, became the basis for the modern infancy defense in most legal systems. This legal situation prevailed in Britain until 1933.¹⁶ Section 50 of the Children and Young Persons Act, 1933, raised the minimum age for criminal liability from 7 to 8; in 1963, the statute was amended and the minimum age was defined as 10 years,¹⁷ which moved the borderline between the first two age groups. This legal situation prevailed in Britain until 1998.

In some cases the legal question was whether the relative presumption of the common law is still valid, because the statute, which referred to the absolute presumption, was not explicit about a relative presumption.¹⁸ Different courts ruled differently, until the British legislator explicitly abolished the relative presumption in 1998, so that children until the age of 10 are fully exempt from criminal liability,¹⁹ and above that age are considered adults.²⁰ In 2000, the European Court of Human Rights ruled that in order to impose criminal liability on a juvenile offender above the age of 10, he must be capable of actively participating in the criminal process against him.²¹

In the United States, the English approach was embraced by both legislation²² and court rulings.²³ Some states preferred to raise the minimum age from the traditional seven to a range between 7 and 12²⁴ (the reference being to biological and not to mental age).²⁵ But the statute is balanced by a relative legal presumption, which remains valid between the determined minimum age and the age of 14. Refuting that presumption requires significant evidence regarding the juvenile offender’s mental capabilities.²⁶

The general examination is whether the juvenile offender understands the meaning of the behavior that formed the criminal offense.²⁷ The Model Penal Code suggested raising the minimum age for criminal liability to 16, with an absolute legal presumption, abolishing the relative presumption (which then becomes unnecessary), and between the ages 16 and 18, bringing juvenile offenders to trial before a juvenile court.²⁸

In France, the Napoleon Code of 1810 amended the old law, which was based on Roman law. According to the code, the minimum age for criminal liability was set at 16 years. This definition was based on an absolute legal presumption of incapability to consolidate the required fault under that age. In 1906, the minimum age for criminal liability was raised to 18, but the absolute presumption was replaced by a relative one, allowing the imposition of criminal liability on the juvenile offender but mitigating the punishment. In 1912 and again in 1945, the legal situation in France underwent a gradual change.

Juvenile offenders were divided into two groups: offenders under the age of 13, and those between 13 and 18. Offenders in the first group enjoy an absolute legal presumption, which prevents the imposition of any criminal liability on them. These offenders may be subject to alternative therapeutic treatment, which is not part of the criminal process. Offenders in the second group enjoy a relative legal presumption, which prevents the imposition of criminal liability, unless it is proven that they have the mental capability to consolidate the required fault. The punishment of these offenders is mitigated based on judicial discretion, and if the offender is under the age of 16, the court must impose a reduced punishment.²⁹ This legal situation was preserved in the criminal code of 1994.³⁰

German law accepts three age groups of juvenile offenders. The first group, under the age of 14, enjoys an absolute legal presumption, and these offenders are incapable of consolidating the required fault for criminal liability. This presumption is inclusive and independent of the offender’s actual mental state.³¹ The second group contains offenders between the ages of 14 and 18. These offenders may be subject to criminal liability based on their mental state, which the court must examine in every case separately.³² The third group contains juvenile offenders above the age of 18, who are formally adults and may not be exempt from criminal liability on the basis of age.³³

The United Nations Covenant on the Rights of the Child requires the determination of a minimum age for criminal liability and the establishment of therapeutic frameworks for the rehabilitation of juvenile offenders, without judicial sanctions.³⁴

The legal basis for the general defense of infancy is the presumption of infancy. Different developments in the various legal systems endowed this presumption with different content. In some legal systems, the presumption is absolute, in others it is relative, and in still others it combines absolute and relative elements. Some legal systems prefer the biological age, others the mental age, and others yet a combination of both. The biological age differs in different legal systems. Despite all these differences between various legal systems, the principal legal basis expressed by the presumption of infancy is identical.

The general formulation of the presumption of infancy may be stated as follows:

Owing to the presumption of infancy, the fault required for the imposition of criminal liability is negated as long as the offender is under the age of criminal liability. The presumption of infancy creates the required linkage between the offender’s age and the principle of fault in criminal law. Because the infancy defense negates the offender’s fault, it is part of the negative fault elements, similarly to all general defenses.³⁵ The presumption of infancy contains two cumulative elements:

These elements are discussed below.

The first element is the offender’s personhood. When the offender is human, personhood is natural and the offender’s infancy is measured biologically or mentally based on personal characteristics. But humans are not the only possible offenders. Legal entities, such as corporations, are also subject to criminal liability, and therefore to the negative fault elements as well. The infancy defense may be applied to corporations, but it requires certain adjustments. Naturally, the calendar age of the corporation is not the relevant parameter for the applicability of the infancy defense. A one-day-old corporation is already subject to criminal liability. But early stages of the enterprise, before the formal act of incorporation, may be considered as the period of the corporation’s infancy.

These stages form the twilight zone of corporate law, between the corporation’s non-existence and full personhood. The owners of the corporation may take various actions on its behalf before the formal act of incorporation: they may contact third parties, cause damages to them, and commit criminal offenses. After the corporation becomes formally a legal entity, the question arises whether it is criminally liable for the offenses committed on its behalf at these early stages. Application of infancy defense to corporations would impose criminal liability on the owners, as the corporation was still not mature to be subject to such liability.³⁶

The second element is the offender’s age, which must be under the age of criminal liability. Determination of that age differs in various legal systems in two main aspects: the type of age being examined and the number of years. Two main types of age are considered: biological and mental. Biological or calendar age is counted from a person’s birth or a company’s formal incorporation. This type is simple to define and does not require special resources to determine. At the same time, determination of biological age for purposes of the infancy presumption is based on a general premise that the offender’s mental age accurately matches the biological one. According to this premise, a 10-year-old boy has the mental capacity appropriate for a youth of that age, although many youths of that age naturally deviate from presumed capacity, in either direction, and can include geniuses at one end and mentally retarded individuals at the other.³⁷ The question is, what capacity is relevant for the infancy defense.

Because the infancy defense is part of the negative fault element, it negates the offender’s fault on the basis of his mental capacity, which is presumed to be inadequate for the consolidation of the required fault. Using biological age for this purpose helps determine the offender’s mental capacity. But the required age in this context is mental age, which does not infer the offender’s mental capacity indirectly and presumably, but determinates explicitly what it is. Therefore, the appropriate type of age to be used for applying the infancy defense is mental age.

Discovering the offender’s mental age is more complicated than discovering his biological age at a time when all births are recorded. Discovering the mental age requires psychological examination and challenging the offender’s mental capacity. Determining the accurate mental age of the offender is crucial especially when there is a gap between the biological and mental ages. How should the court relate to a 17-year-old youth with mental capacity of a 4-year-old? And would it be just to prevent imposition of criminal liability on a youth who is biologically 1 year under the criminal liability age, but mentally 3 years above it?

The acute problem is with mentally retarded offenders. In most legal systems, mentally retarded persons are not considered insane, therefore the insanity defense is irrelevant for them. In legal systems that determine infancy on the basis of biological age, the infancy defense is also irrelevant for them. In these cases, without a special defense for the mentally retarded, criminal liability is imposed on these offenders despite the fact that their mental capacity is much lower than that required to consolidate criminal liability.

Mentally retarded persons are children locked in an adult body. They appear to be adults, but their inner world is entirely that of a child. It is common to distinguish between four main groups of mentally retarded persons based on their IQ³⁸:

Using the biological age of mentally retarded people as a scale for the applicability of the infancy defense is unjust. Applying the insanity defense is also unjust, because mentally retarded persons are not insane. Therefore, the most appropriate defense is the general defense that matches the offender’s mental age, which is the infancy defense if it is determined based on the offender’s mental and not biological age. In most legal systems, the mental age of juvenile witnesses has already been determined when the court is required to accept their testimony, in order to assess its reliability. If this practice is required and followed for witnesses, why not for offenders as well?

The second aspect of the offender’s age is the number of years. Regardless of whether we are counting biological or mental age, the legal system determines the age in number of years required for the imposition of criminal liability. For example, the law may state that the mental capacities of a 12-year-old correspond to the minimum required capacity for imposing criminal liability. Different legal systems set different age limits, based on local social insight. Setting an age limit of 12 years reflects the social understanding of the age at which children should take responsibility for their behavior.

More protective societies prefer to expose young persons to criminal liability at an older age than less protective ones do. In the past, children were married by the age of 14, whereas today at this age they are still under their parents’ supervision.³⁹ As life is extended because of rapid developments in the medical sciences, the period of childhood is also becoming longer. Modern children may be technologically sophisticated, but still retain the cognition and volition of children. Therefore, in the modern era, most legal systems tend to set older ages as the minimum age for the imposition of criminal liability.

The burden of proof for these two elements is on the party that wishes to rely on it during the trial. In most cases, this means that the burden of proof is on the offender, who seeks to prevent the imposition of criminal liability on the ground of insanity. It is not always the offender, however, who claims infancy. In some legal systems, in order to begin therapeutic procedures for the treatment of a child, it is necessary to initiate criminal proceedings, in which case the prosecution makes a claim of infancy. In such cases, the court stops the criminal proceedings, and after being persuaded of the offender’s infancy (biologically or mentally), therapeutic procedures are initiated accordingly.⁴⁰

The party that bears the burden of proof, whether it is the prosecution or the offender, needs to raise no more than a reasonable doubt regarding the age (biological or mental) of the offender. In some legal systems, general defenses must be proven by a preponderance of evidence. If the presumption is properly proven, the conclusion of the presumption is absolute, and therefore the offender is presumed to be incapable of consolidating the required fault for the imposition of criminal liability. Such a person would not be convicted under the given charge, and no criminal liability would be imposed on him.

The presumption relates to the time of the commission of the offense, and not the time of the trial. The time of the trial may be relevant for procedural purposes. For the imposition of criminal liability, the time of the commission of the offense is the only relevant time, exactly as it is the relevant time for checking all the other requirements for criminal liability, including the factual and mental elements. Thus, to use the infancy defense, a reasonable doubt must be raised regarding the age of the offender when committing the offense.

For the infancy defense to apply, an offender must be considered infant (biologically or mentally) at the time of the commission of the offense. If by the time he stands the trial, he is already adult, it does not affect the status of the criminal liability of the offender because the relevant time is that of the commission of the offense. This is because the presumption refers to the substantive law and to criminal liability, and it is therefore examined in relation to the commission of the offense.

Because the presumption of infancy is an absolute presumption, the conclusion cannot be refuted as long as all elements are proven. In this situation, no criminal liability is imposed on the offender if the offense has been committed while the offender was considered infant. Consequently, as an absolute presumption, it can be voided in two principal ways:

After the presumption of infancy has been proven it cannot be refuted, and the offender is exempt from criminal liability. Besides the general defense of infancy, most legal systems also accept particular defenses, both substantive and procedural, regarding the juvenile offender. The particular substantive defenses do not replace the general defense of infancy, but expand the defense for juvenile offenders into situations that are not included within the scope of the general defense. For example, most legal systems accept a particular defense against criminal liability in statutory rape if the offender was not older than the victim by more than a certain number of years.

This particular defense does not replace the general defense of infancy, but expands the exemption from criminal liability for offenders who are not necessarily under the age of criminal liability. Another common example is a minimum age for membership in a terrorist organization, which is above the minimum age for criminal liability. Procedural defenses grant juvenile offenders immunity from being prosecuted and tried in any criminal process, or immunity from certain punishments, although criminal liability may be imposed.

Thus, in most legal systems that allow capital punishment, juvenile offenders would not be subject to it. In most legal systems incarceration is not a valid punishment unless the offender is older than a certain age. Naturally, procedural and substantive questions are treated separately and examined at different points in time. The procedural question is examined at the time of the trial, whereas the substantive question is examined with reference to the time of the commission of the offense. Thus, if the offender was under the age of criminal liability when he committed the offense, but is prosecuted when he is above that age, he may be tried (procedure), but no criminal liability may be imposed (substance).

Even if no criminal liability is imposed on the juvenile offender because of his age, regardless of whether for substantive or procedural reasons, society is still aware of his need for social and personal treatment. Participation of the juvenile offender in the commission of an offense is in many cases a sign of distress. Although the treatment inherent in the criminal process may not be applicable for the offender, other treatments may be relevant.⁴¹ These are therapeutic alternatives to the criminal process, which under the circumstances is not applicable.

In many other cases, although criminal liability may be imposed and the criminal process is applicable to the juvenile offender, the mental damage caused by applying the criminal process can be disproportional and cause more damage than benefit. Therefore, the therapeutic alternatives may be relevant not only when it is impossible to impose criminal liability, but in a much wider range of cases. The key player in these cases is the juvenile court, which is part of most modern legal systems.⁴² Juvenile courts have both civil and criminal jurisdiction, and therefore the therapeutic alternatives may be applied both in criminal and civil processes.

In general, when no criminal liability may be imposed on the juvenile offender, the civil process is relevant, and the offender is subject to treatment by the juvenile court through the intervention of the social services. In these cases, the social services are notified about the participation of the juvenile offender in the offense, and they intervene, attempting his rehabilitation. The social services need the confirmation of the court for some of the treatment, and they obtain it by applying to the juvenile court through a civil process.

When criminal liability may be imposed on the juvenile offender, i.e., the presumption of infancy is not applicable or has not been proven, the prosecution charges the offender, who is brought to criminal trial in the juvenile court. As part of the criminal process, the juvenile court has the judicial discretion to apply a therapeutic treatment instead of the criminal liability or in addition to it. If the juvenile court applies such treatment or examines whether the case is suitable for such treatment, the social services assist the court in obtaining a broader perspective on the case. In most cases, the therapeutic alternatives are considered both in relation to the imposition of criminal liability and to sentencing.⁴³

Of course, the question of punishing juvenile offenders becomes relevant only when they are above the age of criminal liability. If they are, they may be subject to treatment but not by way of criminal proceedings. Thus, punishment is relevant to juvenile offenders who have reached the age of criminal liability but not the age of maturity. The range of specific ages for different types of punishments varies from one legal system to another according to the social concepts in effect at a given time and place.

The general assumption towards juvenile sentencing is that the young age and personal inexperience of the offenders require a deeper examination of the possibility of using rehabilitative programs and treatments, given that the personal rehabilitation potential at this age is higher than later in life. Higher potential for rehabilitation means a greater chance to prevent reoffending by using appropriate means.⁴⁴ Moreover, because of the young age of the offenders, the assumption is that inappropriate treatment will result in society having to face their delinquency for a longer period of time than it does for mature offenders. Consequently, the courts tend to emphasize rehabilitation among the general purposes of punishment of juvenile offenders.⁴⁵

Retribution is not affected by age of the offender, because the harm caused to society by the commission of the offense is evaluated objectively, and it is not affected by the age of the offender or by his identity. And although the subjective pricing of suffering included in retribution may be affected by the offender’s age, this effect is not different from that of any other personal characteristic considered by the court as part of the subjective pricing of suffering. Therefore, the young age of the offender has no significant value from the point of view of retribution.

Deterrence may be affected by the offender’s age. When deterrence is examined in order to impose the appropriate punishment intended to prevent reoffending, the court must consider the personal characteristics of the offender. In most cases, the measures needed to deter juvenile offenders are milder than those needed to deter mature offenders. The general assumption is that juvenile offenders lack life experience and are fully subject to the process of socialization,⁴⁶ but individual juvenile offenders may require extreme measures of punishment compared with adults, as their short experience with the law enforcement system shows that it is not effective.

Some juvenile offenders may be experienced in manipulating the system and some may be very stubborn in resisting the efforts of the system to prevent them from reoffending and integrate them in society. Deterrence treats the offender as a rational person, which may be an over-inclusion in the case of juveniles under certain circumstances because their life experience may be too poor, especially with respect to their tendency of taking risks or reject them. Thus, the expected values of benefits and punishments may be different when the offenders are juvenile, which must also be taken into consideration.

Public deterrence is also affected by the offender’s age. When the message to society is forgiving and merciful and the court uses extremely mild measures, the public’s tendency may be to take advantage of that forgiving and merciful approach in order to commit further offenses, paying a low price if caught. Harsh punishments toward juvenile offenders may deliver an effective deterring message because many juvenile offenders are still part of social frameworks (family, school, youth movement, sports team, etc.), which may exert pressure on the young offender to avoid delinquency. Thus, because of the deterring message broadcast by society to the public, the juvenile’s family may put pressure on the youth not to offend.

Of all general purposes of punishment, rehabilitation is affected the most by the age of the offender. Rehabilitation is considered based on the evaluation of the offender’s personal rehabilitation potential. The general assumption about juvenile offenders is that their personal rehabilitation potential is extremely high compared with that of adult offenders. This assumption sometimes relies on the existence of appropriate treatments and rehabilitative programs adapted to juveniles and targeted to reduce the rate of recidivism among them. Thus, the court is required to match the offender with the appropriate program to maximize the juvenile’s abilities to rehabilitate.⁴⁷

Nevertheless, the absence of an appropriate treatment or rehabilitation program can result in misuse or no use of the juvenile offenders’ personal rehabilitation potential and in blurring the difference between juvenile and adult offenders in this context. Moreover, empirical research shows that inappropriate rehabilitation programs for juveniles not only fail to reduce recidivism but significantly increase it.⁴⁸ Indeed, the sensitivity of modern legal systems to this issue made most of them establish juvenile courts, tribunals, or departments in order to enable proper evaluation of the offenders’ personal potential and to match them with proper treatments or rehabilitation programs.⁴⁹

Incapacitation is affected indirectly by the age of the offender. Incapacitation is intended to reduce the social endangerment posed by the offender and stop him from reoffending. The personal characteristics of the offender play a dominant role in choosing the most appropriate measure for incapacitating the offender. The age of the offender does not necessarily affect the incapacitation measures. Nevertheless, measures used to incapacitate juvenile offenders are usually milder than those used with adults, as juveniles lack the rich experience and social frameworks (family, school, youth movement, sports teams, etc.) to assist in preventing them from reoffending.⁵⁰

For example, in many cases it is more effective to place restrictions on a juvenile offender living in his parents’ home or to involve parents more intensively in the juvenile’s life and in imposing strict limits on his behavior than to impose a formal punishment. If the juvenile offender is sent to juvenile prison, his social connections with other juvenile offenders are expected to expand, develop, and later come to full realization in future offending. This assumption is, however, too general. To incapacitate some juvenile offenders, harsher measures may be required than those used with adults because their personal capabilities of self-control may be underdeveloped.

The dominant tendency in modern legal systems with regard to the sentencing of juvenile offenders is to increase the effect of rehabilitation as a general purpose of punishment. This is a social decision rooted in the desire to integrate juvenile offenders in society through appropriate treatment. Effective treatment of juvenile delinquents requires careful examination of their personal rehabilitative potential. Sensitivity in treating juvenile offenders, the need for expert treatment, and the higher rehabilitative potential of young offenders were the main causes for the development of unique approaches to treating juvenile offenders.

The younger the juvenile offender is, the greater the social benefit expected from reintegrating him into society because society benefits from a longer period of time free from that former offender’s delinquency. Special juvenile courts may ease this process given their expertise, but even if no such court functions in a given society, the general court is required to seriously consider rehabilitation as a general purpose of punishment in these cases.

The infancy defense refers to juvenile offenders, and the insanity defense to insane offenders; then how can they be tangential defenses? Nevertheless, both defenses have to do with difficulties in consolidating the offender’s fault. Analytically, infancy refers to mental immaturity and insanity to mental deficiency; the tangent is in mental immaturity, which is a mental deficiency. We can distinguish four situations involving a combination of insanity and infancy (Table 3.1).

The first situation refers to juvenile offenders who are completely sane. This situation appears to fall within the scope of the infancy defense alone, and the insanity defense us irrelevant. But this is not always the case. If the offender’s immaturity, which prevents consolidating the required fault for the imposition of criminal liability, derives not from his biological but from his mental age, some legal systems consider this situation to be within the scope of the insanity defense. In these legal systems, mentally retarded offenders are protected under the insanity defense.⁵¹ Applying insanity defense, however, may have various undesirable social consequences, and the offender may opt for the infancy defense if his mental age is under the age of criminal liability. These situations call for a clear distinction between infancy and insanity.

The second situation refers to adult and sane offenders. In these situations both the infancy and insanity defenses appear to be irrelevant, but this is not necessarily the legal situation. In many legal systems, mentally retarded adult offenders are considered both adult and sane because there is no defense for mental retardation. The court must execute various legal maneuvers to prevent the unreasonable outcome of imposing criminal liability on an offender who suffers from severe mental retardation and is incapable of understanding the criminal consequences of his behavior. Indeed, the offender’s mental situation may match both the presumption of insanity concerning a deficiency in cognition and volition, and the presumption of infancy, because of his mental age. These situations also call for a clear distinction between infancy and insanity.

The third situation refers to insane juvenile offenders. When a child under the age of criminal liability commits an offense, he is subject to the infancy defense. But when the child suffers from a mental deficiency, he may also be subject to the insanity defense, which is independent of the offender’s age. Because these defenses may have different legal and social consequences, the defense that is most appropriate, both legally and socially, should be applied. These situations also call for a clear distinction between infancy and insanity.

The fourth situation refers to insane adult offenders, where the insanity defense appears to be relevant, and the infancy defense is inapplicable. But what happens if the mental deficiency of the offender causes him to behave like a child? The clear internal reason for the behavior is the offender’s mental deficiency, even if the external behavior and the offender’s inner world are identical with those of a child.⁵² The court may ask whether it should be impressed more by the formal reason or by the symptoms and the offender’s inner world. These situations also call for a clear distinction between infancy and insanity.

If the legal and social consequences of the insanity and infancy defenses were identical, the question of a clear distinction between insanity and infancy would have had a theoretical but not a practical value. In most legal systems, however, the two defenses have different legal and social consequences. When an offender is exempt from criminal liability for insanity, some of his civil rights and freedoms are taken away. For example, such individuals are not allowed to possess guns, drive motor vehicles, work with vulnerable persons (children, the mentally retarded, etc.), to work in certain jobs, conduct certain civil transactions, etc.

Most of these offenders are referred to psychiatric treatment, some with their consent, others under coercion. These consequences are usually not part of infancy defense, therefore the distinction has both theoretical and practical value. Comparison of the legal elements of the two defenses shows that what they have in common is the symptoms, and that the difference between them lies in the reasons for these symptoms: in the case of insanity the reason for the incapability of consolidating the required fault is mental deficiency, whereas in the case of infancy the offender’s age.

Furthermore, the presumption of insanity involves a functional test of whether the mental deficiency actually negated the cognitive capabilities of the offender with regard to the commission of the offense at hand, or his volitive capabilities.⁵³ The presumption of infancy does not require examination of the actual effect of young age on the offender’s cognition or volition in the commission of the offense. According to the presumption of infancy, such an effect is due to the offender’s age (either biological or mental).

If the offender’s cognition or volition is disrupted by a mental deficiency, the insanity defense is more appropriate than the infancy defense, but if the reason is the offender’s mental or biological age, the infancy defense is more appropriate. Appropriateness refers both to the legal and social consequences of these defenses, i.e., whether the exempt offender is referred to psychiatric treatment or to a juvenile rehabilitation program. The ultimate question, however, is whether the legal classification of mental retardation belongs with infancy or insanity.

Mental retardation may have the symptoms of insanity because under certain circumstances it attests to damaged cognition or volition. But mental retardation does not necessarily include such symptoms. Ultimately, what matters in the effect and symptoms of mental retardation is the similarity of the inner world of the offender with that of a younger person: the inner world of the mentally retarded person is similar to that of a younger sane person. Severe and deep retardation correspond to younger ages, even to early stages of infancy; easy and medium retardation to somewhat older ages.⁵⁴ But all degrees of mental retardation correspond to younger ages within the range of sanity.

The general defense of automatism, or loss of self-control, refers to situations in which an offense is committed while the perpetrator lacked control over the relevant body movements. The idea behind automatism has remained unchanged in classical and modern criminal law, but its classifications and examinations have changed. In the Anglo-American legal systems, automatism was traditionally classified with the positive requirements having to do with the offender’s control. The offender was considered to be coerced if he had no control over his body movements while committing the offense. Thus, if the offense is committed without a free choice, no criminal liability is imposed.⁵⁵

For example, when the ultimate reason for the commission of the offense is the offender’s reflex, over which he has no control, the offender is presumed to have been coerced to commit the offense. In some Anglo-American legal systems, automatism was not considered a general defense, but a preliminary condition within the factual element requirement. The offender’s conduct should have been controlled in order for it to be considered “conduct.” Therefore, conduct was defined within the factual element requirement as “a willed muscular contraction,” “a willed muscular movement,” or “a willed bodily movement.”⁵⁶

These definitions went far beyond the scope of the factual element requirements because they involved mental element components. Will, naturally, is not part of the factual element but of the mental element. If the intention was to prevent criminal liability in the case of unwilled movements,⁵⁷ the proper legal measures for achieving this involve the principle of fault rather than the principle of conduct.⁵⁸ Consequently, modern legal systems gradually reclassified automatism and made it part of the principle of fault.⁵⁹

It may have been argued that the offender’s control over the movements of his body is to be examined in any case, so why should it matter whether it is examined under the principle of conduct or the principle of fault. One of the reasons is that the standards behind the two principles are not identical. Under the principle of fault, subjective examination is the rule, objective examination being considered an exception and softened through various measures. Under the principle of conduct, the only legitimate standard is the objective one. Including will under the factual element was perplexing and resulted in erroneous conclusions.⁶⁰

The factual element requirement, addressing the criminal norm, requires essential external objective components in order to impose criminal liability, because nullum crimen sine actu. Any requirement placed on the offender’s mental inner world is irrelevant here. This approach became dominant in modern criminal law. For example, the American Law Institute Model Penal Code defined the term “act” as “a bodily movement, whether voluntary or involuntary.”⁶¹ The voluntariness of the conduct became part of the negative fault elements, which prevent imposition of criminal liability in cases of involuntariness, but this was accomplished gradually.⁶²

After classifying this requirement within the principle of fault, the question arose whether to include it as part of the positive or negative fault elements. In other words, should it be part of the mental element requirement or of the general defenses? This question has various legal consequences related to the legal differences between positive and negative fault elements.⁶³ The proper classification is within the negative fault elements, as part of the general defenses in criminal law, because of the existing factual reality, which is common in most cases.

An offender may consolidate full general intent (mens rea) and still have no control over his bodily movements. For example, an offender can act under an involuntary reflex, and at the same time be aware of his conduct of the commission of the offense. If this situation is relevant for general intent, it can easily be relevant also in cases of negligence and strict liability.⁶⁴ Nevertheless, the negative aspect of the principle of fault, which is expressed by the general defenses, can negate the offender’s fault, even though the offender fully consolidated the mental element requirement. Therefore, automatism is relevant to the general defenses rather than to the mental element requirement.

Automatism refers not only to bodily reflexes but also to completely natural movements and third-party effects. For example, during a routine medical examination of reflexes, the physician taps the patient’s knee. In a normal response, the patient moves involuntarily the foot and kicks the physician. Although the person is fully aware of the action, the general defense of automatism prevents imposition of criminal liability. This refers also to other natural situations such as sleeping, allergic reactions to insect bites, hypoglycemia, hyperglycemia, etc.

Consider a person standing inside a bus on his way home. The bus driver stops suddenly to avoid running over an animal, and the person falls on one of the passengers. Given that the passenger did not consent to this, it may be considered an assault. Although the person was fully aware of the situation, the general defense of automatism prevents imposition of criminal liability because the bodily movements were uncontrollable. Thus, automatism refers both to internal and external coercion. When functionally the offender could not have possibly controlled his bodily movements, the results of these movements may be subject to the general defense of automatism.

Automatism refers to the personal circumstances of the offender (in personam) rather than to the impersonal circumstances of the factual occasion (in rem). Because the capability to control bodily movements is part of the offender’s personal data, automatism is classified within the general defenses as an exemption and not as a justification. Automatism is therefore an in personam general defense, and this is how European-Continental legal systems traditionally classify it.⁶⁵ European legal tradition has weakened this general defense through the doctrine of actio libera in causa, which in modern interpretation amounts to a transformation of the fault.⁶⁶

Under the European legal approach to automatism, the moment of the commission of the offense is less significant than the moment when situation of automatism was entered. If the offender had control over his entry into this situation, and chose to place himself in a state of automatism, he is not entitled to the exemption from criminal liability for automatism. But this approach is vague, because offenders may enter into a state of automatism in various situations, including as a result of negligence. Below we discuss the issue of controlling entry into a state of automatism under the theory of transformation of fault.⁶⁷

The legal basis for the general defense of automatism is the presumption of automatism. Different developments in various legal systems endowed this presumption with different content. In some legal systems it is an absolute presumption, in others a relative one, and in others still it combines absolute and relative elements. Although the content of the presumption differs in each legal system, the principal legal basis, as expressed by the presumption of automatism, is identical.

The general formulation of the presumption of automatism may be stated as follows:

The presumption of automatism negates the offender’s fault because the offender is unable to control his bodily movements or the circumstances that led to this condition. For example, if the offender is taking certain medication that makes him incapable of controlling his bodily movements at the time the offense is committed, but he determines whether or not to take the medication, the presumption of automatism does not apply. Therefore, two cumulative conditions must be met for the presumption of automatism to apply:

Because the presumption of automatism negates the offender’s fault, it becomes part of the negative aspect of the principle of fault, i.e., it is a negative fault element.

The second condition refers to the transformation of fault, and discussed below.⁶⁸ The first condition refers to the inability to control one’s bodily movements can be the result of various circumstances. At times, the cause is purely physical, and the involuntary movements are produced automatically by the nervous system. These movements may be reflexes, twitches, and more: contraction of the heart muscles, knee jerks, tremors of various organs due to Parkinson disease, etc.⁶⁹

Automatism, however, can manifest not only as actions, but also as inaction. When a person is required to carry out a certain act but his body does not obey, the condition is within the scope of automatism. This type of manifestation of automatism is more relevant to omission offenses and to derivative criminal liability.⁷⁰

Although in many cases people who cannot control their bodily movements are unaware of them, automatism and unawareness are two different situations.⁷¹ Automatism does not require awareness or unawareness. The offender’s awareness of his automatic bodily movement does not negate their automatic character. Awareness of involuntary bodily movements does not make them voluntary. Indeed, awareness is required to control the body, but this is not the only condition for control. A Parkinson patient may be aware of involuntary bodily movements, but still incapable of controlling them.

Similarly, when a person is in a deep sleep and unaware of his acts, he is both unaware and incapable of control, a situation that is within the scope of automatism. Nevertheless, in cases of this type the offender may raise two arguments: being unaware of the factual element, as required by the mental element requirement (in general intent offenses),⁷² and being under a situation of automatism. The two arguments complement each other because they cover both positive and negative aspects of the fault, but they may be relevant only in general intent offenses, because no awareness is required in other offenses (so that only automatism is applicable).⁷³

Automatism refers to situations in which a person acts as if he were an automaton, without voluntary, central control over action or inaction.⁷⁴ The best-known situations recognized as automatism in most legal systems are epileptic twitches, post-epileptic states,⁷⁵ twitches caused by organic brain diseases or by diseases of the central nervous system, twitches resulting from strokes,⁷⁶ side effects of head injuries, side effects of oxygen shortage in the brain, side effects of hypoglycemia or hyperglycemia in diabetes patients,⁷⁷ somnambulism (sleep-walking),⁷⁸ shortage of sleep,⁷⁹ side-effects of bodily trauma⁸⁰ or mental trauma,⁸¹ and others.⁸²

It is not necessary to identify accurately the physical cause of automatism in a particular case for the presumption of automatism to apply; the possible causes for automatism do not form a closed list. Nevertheless, the situations are examined functionally, and in each case, the offender is required to show inability to control his bodily movements. When the offender is indeed incapable of controlling his bodily movements, automatism may be applicable regardless of the medical cause for the inability.

A person who suffers from amnesia and is capable to control his bodily movements but cannot remember doing so, is considered to be incapable of controlling them.⁸³ A person who was brainwashed is not considered incapable of controlling his conduct, even if he has a different perception of that conduct and understands it differently in retrospect.⁸⁴ Consequently, the court needs to examine automatism in functional terms. If the offender had de facto control over bodily movements in functional terms, the automatism defense is not applicable.

The first condition does not refer to control over bodily movements but to the inability to exercise control. The relevant examination is of that capability, not of control itself. If a person did not control his bodily movement but had the capability of doing so, automatism is not applicable. For example, a person spinning a top does not control its movements, but he has the capability of doing so, for example, by using his hands to stop it or to change its course. In this case, the person is not considered to be in a condition of automatism.

Other factual components of the factual element requirement are also irrelevant. In most offenses the circumstance components are beyond control. For example, the circumstance “woman” in rape is beyond the offender’s control, and the victim is defined as a woman regardless any of the offender’s actions. The result component is also beyond the offender’s control, because it is considered to lie in the future. The offender is capable of controlling the conduct that is the cause of the result, but not the result itself.

Automatism refers not only to human offenders and may apply to corporations as well. Just as human offenders may be incapable of controlling their conduct, so are corporations. The criminal liability of a corporation is imposed by relating the factual and mental elements (as well as the derivative criminal liability) to the corporation. This is relevant to all offenses, regardless of the type of required factual element or of the degree of the required mental element. Therefore, if fault elements may be related to the corporation, there is no difference between positive and negative fault elements in this context.

When the general defense refers to human characteristics, which have significance only for human offenders, it cannot be applied to corporations, which lack that particular characteristic. In these cases, if there is a significant difference between humans and corporations, it would be justified not to apply the general defense to corporations. Therefore, in most legal systems automatism defense applies to humans alone. Nevertheless, the general defense of automatism may be applied to corporations because it does not refer to human characteristics exclusively.⁸⁵ Automatism in the case of corporations can occur in two types of cases:

The first type refers to cases in which the conduct of the corporation has been carried out directly by the corporation, unrelated to actions of any of its organs. A wide range of conducts can match this situation. For example, when a liquidation order is issued against a corporation in response to creditors’ actions, significant changes and processes take place within the corporation, over which the corporation has no control. In most cases, these processes are considered to be acts carried out by the corporation.

Thus, as part of the liquidation order, all the employees of the corporation are considered to be dismissed, although this action may be against the will of the corporation. If, for some reason, such dismissal is illegal, the corporation cannot be considered criminally liable for it. If, however, the corporation brought this circumstance on itself by its previous conduct (e.g., not paying its debts, intending to be subject to a liquidation order as a result of probable legal action by its creditors), the transformation of fault, discussed below,⁸⁶ would negate the automatism defense, and the corporation would be considered criminally liable.

By contrast, if the liquidation order was completely unexpected or illegal, and was accepted in court by mistake, the corporation did not consolidate any fault in reaching this situation, and therefore no fault is transformed. Consequently, the corporation would be exempt from criminal liability based on the automatism defense.

The second type of cases refers to legal and operational relationships between the corporation and its organs. The term “organ” refers in general to all persons whose conduct may be considered as that of the corporation. These are the employees of the corporation, but not only they; for example, they can also be service providers acting on behalf of the corporation. In these types of cases, the automatism defense can refer to two main causes:

The first cause has to do with the connection between the automatism of the corporation and of the organ. The inability of the organ to control his conduct is not related to the corporation, because automatism is an exemption (in personam), not a justification (in rem). Therefore, if regardless of the inability of the organ to control its conduct, this conduct would have been related to the corporation, the automatism of the organ would still not be related to the corporation. The key explanation for this legal situation lies in the rule of impersonal and personal characteristics, as discussed above.⁸⁷ Thus, personal characteristics are personal and not subject to one’s relation to the corporation.

The second cause has to do with the ultra vires situations, where the organ does not adhere to the orders of the corporation. In these cases, the powers of the organ are specified by the corporation, but the organ exceeds them and commits a criminal offense. Nowadays, when private initiatives are rewarded by corporations, such incidents are quite common. In these cases, the organ is criminally liable for the offense, but the question of the criminal liability of the corporation still arises. If the corporation takes all reasonable measures to prevent the commission of criminal offenses, and nevertheless one of its organs commits an offense, is it just to incriminate the corporation, even if it had no means of controlling the conduct of the organ?⁸⁸

For example, the general manager of a construction company authorizes a deputy to negotiate with a civil servant for obtaining a building permit. The deputy is warned not to bribe the civil servant or commit any kind of criminal offense, and it is made clear that if he fails, the corporation would not backup him up, and he will be fired immediately. The deputy understands the warnings, confirms them, and promises to adhere to them, but during the negotiation he bribes the civil servant. Is the corporation criminally liable for the offense?

In general, the deputy is criminally liable. But given that the corporation explicitly warned against committing criminal offenses, is there any legal basis for impose criminal liability on it? In this case, the corporation may raise the automatism defense, because it could not have controlled the organ’s conduct. The ultra vires defense has not been accepted in criminal law in most legal systems, not with respect to the organ’s powers or to those of the corporation. Therefore, the corporation is criminally liable for the offenses committed by its organ, despite the fact that they were clearly ultra vires.⁸⁹

This legal situation reflects the concept that the corporation acts through its organs, and as far as criminal liability is concerned, these organs are an inseparable part of the corporation. When the organ commits an offense while acting on behalf of the corporation, it is considered as if the corporation had committed the offense itself, regardless of whether or not it was within the powers of the organ to commit the offense. The criminal liability of the organ extends to the corporation as well.⁹⁰ And because the organ has control over his conduct, this controlled and voluntary conduct is applied also to the corporation.

The general social justification for this state of affairs, apart from the legal justification, is that the corporation has the obligation to choose the most appropriate officers, skilled, compliant with the law, and unwilling to commit criminal offenses. The corporation’s choice of an officer who does not meet these standards is not an excuse for exempting it from criminal liability for the offenses committed by an officer acting in the capacity of an organ of the corporation. The corporation cannot hide behind its organs who commit criminal offenses, even if they are committed ultra vires.⁹¹

Furthermore, the presumption of automatism is not applicable in these cases because the corporation controlled the conditions that led to its inability to control the conduct of the organ, and its choice of officers is part of this capability. Finally, if the offense is not exposed, the corporation generally enjoys the benefits of the offense, which may act as an incentive for other officers to commit criminal offenses on behalf of the corporation.

The burden of proof for all elements is on the party that wishes to rely on it during the trial. In most cases, this means that the burden of proof is on the offender, who seeks to prevent the imposition of criminal liability on the ground of automatism. The party that bears the burden of proof needs to raise no more than a reasonable doubt regarding the offender’s inability to control the bodily movements. In some legal systems, general defenses must be proven by a preponderance of evidence.

If the presumption is properly proven, the conclusion of the presumption is absolute, and therefore the offender is presumed to be incapable of consolidating the required fault for the imposition of criminal liability. Such a person would not be convicted under the given charge, and no criminal liability would be imposed on him.

The presumption relates to the time of the commission of the offense, and not the time of the trial. For the imposition of criminal liability, the time of the commission of the offense is the only relevant time, exactly as it is the relevant time for checking all the other requirements for criminal liability, including the factual and mental elements. Thus, to use the automatism defense, a reasonable doubt must be raised regarding the offender’s inability to control the bodily movements when committing the offense.