Strafrechtelijke aansprakelijkheid heroverwogen: Over opzet, schuld, schulduitsluitingsgronden en straf

Rethinking Criminal Responsibility: On Intent, Negligence, Excuses and Punishment The foundation of this book is a Rawlsian thought experiment. Rawlsian choosers, who are behind a veil of ignorance, are asked to devise a fair system of criminal law. It is hypothesized that prevention of crime will be the General Justifying Aim of punishment. Furthermore, it is maintained that ‘control’ is an essential factor in determining the liability to punishment and the severity of punishment. This system, in which the aim of prevention is limited by the amount of control of the defendant, is neither retributive nor utilitarian. It is argued that criminal responsibility should be justified by the control principle. The control principle states that excuses should afford citizens a fair opportunity to determine their liability to criminal punishment. The Rawlsian and Hartian control principle is applied to the interpretation of negligence, duress, provocation and insanity. With regard to negligence it is maintained that the control principle can be actualized in three ways. (1) Negligence should require a gross deviation from the standard of care that a reasonable person would observe. (2) Individualized circumstances, such as mental or physical disabilities, age, or lack of experience, should be allowed to negate liability. (3) Negligence should be primarily limited to conscious negligence, in which liability is based on a conscious rule violation. These three points are all the more important since it is argued that psychological biases will cause judges to overestimate the amount of control of the defendant. The last chapter is about the interpretation of intent—the most important mens rea concept in Dutch criminal law. Intent encompasses the American legal concepts of purposely, knowingly and recklessly. A person acts with intent when he consciously disregards a substantial risk that he will cause a certain result. Some Dutch scholars maintain that intent does not refer to a mental state of the defendant. I argue extensively that this view should be rejected. The latter part of the chapter concerns the question of how the mental act of intent should be classified. Dutch scholars have traditionally held that intent consists of belief and desire. I argue that desire is not necessary for intent. Brentano’s view that mental acts can be categorized into three distinct classes— presentations, judgments and phenomena of love and hate (feeling and willing)—is used as an analytical tool. I maintain that the defendant’s judgment regarding the object of the mental act (i.e.: ‘I believe my action might kill that person’) is a sufficient condition for intent. This interpretation is partly justified by the fact that cognition is a sufficient condition for control. A defendant who knows his action or omission might cause a result has—save excuses—an excellent opportunity to prevent the outcome