La “vidente” imputación imprudente. Peligrosidad de la conducta y consciencia del riesgo en la definición del dolo y la imprudencia

This paper deals with the subjective element of criminal negligence and the conceptual distinction between negligence, or recklessness, and intention, as different mens rea states. The authors criticize the legal theories that deny the relevance of subjective considerations while adopting normative conceptions motivated by psychologizing objections. They argue that intention requires assuming the realization of the typical event as a practically certain consequence (direct intent) or, at least, with a high probability, so that it implies foresee a specific danger (eventual intent). On the other hand, negligent harmful conducts are dangers of lesser importance (ex-ante), or less unreasonable risks: the agent is conscious of a general danger, being able to foresee an abstract risk of realization of the typical harmful event. However, there may be criminally relevant negligence, even without actual foresight, when adopting a behavior whose danger cannot be ignored, thus justifying the imputation of a “duty of foresight”.