The “conscious” negligent imputation. Degree of danger and awareness of risk in the definition of negligence and intent

Andrea Perin, Tatiana Vargas

Research output: Contribution to journalArticlepeer-review

Abstract

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”.

Translated title of the contributionThe “conscious” negligent imputation. Degree of danger and awareness of risk in the definition of negligence and intent
Original languageSpanish
Pages (from-to)111-140
Number of pages30
JournalPolitica Criminal
Volume15
Issue number29
DOIs
StatePublished - Jul 2020

Bibliographical note

Publisher Copyright:
© 2020 Centro Estudios Derecho Penal. All rights reserved.

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