Friday, September 26, 2008

Mens Rea, and the corpus derilicti.

I've written a number of times on this board.. this post is a bit more thoughtful than some, a bit less than others, but I feel brings a good many things to think about.

If the registry is punitive, and the nature of any crime requires an act, for what act are we being punished?

If 'mens rea', or the criminal intent, is not enough for punishment to be imposed, and 'actus rea', or the criminal act, is missing, how can it be a valid punishment?

If the codes serve a punitive purpose, regardless of how regulatory, can it be imposed upon a person without consent, and without judicial oversight and the juristic right?

If the 'causation' of the action is that 'but for the prior offense, people would not be afraid', is this a valid reason for punishment? Is our existence, by definition, an assault? If there is a threat posed by our existence, but not by intent (the aforementioned mens rea) or by our individual action (the actus rea) in a criminal action, is there actually a threat?

If they would have us believe that our existence is a crime, by its very nature, how can they excuse the admitted punishment as being regulatory?

Can there be a crime with no 'harm'? With no injury? If another's state of fear is a harm, cannot we equally apply that state of fear being culpable to the government itself? Does it not hold others in fear?

For any crime, there must be several things occurring, a criminal act, foremost, as no society can incarcerate for thoughts or perceptions, but only for actions. In addition to this, there must be an active, knowing engagement in the crime, with the knowledge that it is a crime, in order for it to be criminal. This action can be mitigated by coercion, (i.e. the crime committed was less than the threat by the coercing party) or by involuntary intoxication (being drugged by a second party).

The concurrence of these two aspects is criminal.

But where is the intent in many cases to commit a criminal act on the registry? Where is the overt action that justifies the imposition of further restrictions?

Where is the corpus derelicti that defines our crime, for which the regulations constantly change, and for which what many perceive to be punishments are levied?

Where the Supreme Court has declared it unconstitutional to punish someone for a status (Robinson v California, 1968) such as being an addict to drugs, or an alcoholic... it must be acts that are the deciding factor, and not acts in the past, for which they have been already tried.

So where is the crime for which we are being tried? Is it the status of living? The fear fed to the public by others? Or is it an 'artifical crime'? Is it a legal crime created from whole cloth in order to bind us?

And what does this mean for the future? To what ends could it not extend?

1 comment:

Avendora said...

Don't forget about Enmund v. Florida and how it states that a persons crime should be sentenced according to their culpability and not the public perception of certain criminals who have possibly killed their victim in the act of committing the crime.