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The Role of Penalties in Criminal Law
Tulin, Leon
Tulin, Leon
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Abstract
Around the concept "criminal intent," as used in the criminal law, some of the most intensive battles of legalistic dialectics have been waged.' Sometimes the term connotes "purposive" human activity; at other times, it connotes the idea of "anticipation," not necessarily "desire." Again it is said that something other than subjective anticipation comes within the ample bosom of "intent." Even though it may be demonstrated beyond the slightest possibility of doubt that the particular individual whose "mind" is being probed by the mental fluoroscope of court and jury did not anticipate the consequences for which society is now seeking to charge him, he will nevertheless be held to have "intended" them if a reasonable person in his position would have anticipated them. In other words, the courts and juries are supposed to project themselves, being reasonable men, into the position of the defendant and then determine whether they would have anticipated the consequences that did in fact occur. Still, it is this concept "intent" which is said to constitute the foundation of our criminal law structure. By means of determining "its" meaning decisions are purported to be made. But the cases suggest that the foundation is in a disintegrated state.