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  1. #101
    Lallygag Moderator Geoff's Avatar
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    The difference is between civil and criminal offences.

    A civil offence very rarely, if ever, requires intent - what is known as "mens rea" (the guilty mind).

    A civil offence example would be a speeding fine, or late payment of a government charge. There is no need for a court to prove intent.

    With a criminal offence, mens rea is essential - and much of a case will hinge upon the "guilty mind" as well as whether the facts support the offence. The guilty mind is not a moral judgement, it is just a measure of whether there was intent to commit in consideration of the legislation in question. Judges are not there to prosecute based upon the moral "right", merely to execute laws in the light of guilt, or not. Politicians are the ones with the morals, apparently, in making the laws (eg it is wrong to starve a baby to death, we need a law to protect them, say the politicians).

    Criminal offence cases are taken by the government (crown in the UK) and require the government to want/agree a case is due. Civil offences are taken by individuals against other individuals, in the main other than for minor things like traffic offences.

    This leads to some oddities... a lack of "guilt" can lead to someone being proven innocent, and then prosecuted separately for a civil offence by an individual who was wronged, which typically involves payment of monetary damages and no need to prove guilty. This is pretty common in slander cases and the like. It is like double jeopardy.

    It is the lack of a child to have an adult mind (in law, at least) that means they are unlikely to ever be prosecuted for a criminal offence - they are unable to form a "mens rea".

    Hope this helps (going from memory here, it was a while ago I studied criminal law).

    -Geoff

  2. #102
    / booyalab's Avatar
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    Quote Originally Posted by meshou View Post
    Criminal intent, and the proving thereof, is absolutely not judicial activism.
    um in this case a lesser sentence based on intent would be judicial activism because he gave them the mandatory sentence.
    I don't wanna!

  3. #103
    Lallygag Moderator Geoff's Avatar
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    Quote Originally Posted by booyalab View Post
    um in this case a lesser sentence based on intent would be judicial activism because he gave them the mandatory sentence.
    I have to say I struggle with this a little, too. The court and the judge decide upon guilt, using an objective test (or as near to it as possible). The judge then sentences based upon subjective circumstances, so leniency on a sentence is indeed judicial activism.

    it is as if we have a fair, objective, system right up until the last event, and then we cave in and let an individual do what they think is "right" often on moral grounds in the actual sentencing.

    -Geoff

  4. #104
    Senior Member ptgatsby's Avatar
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    Quote Originally Posted by Geoff View Post
    it is as if we have a fair, objective, system right up until the last event, and then we cave in and let an individual do what they think is "right" often on moral grounds in the actual sentencing.
    I completely disagree. The subjective component is a fundamental aspect of criminal law. The whole system is based around variations on this... we have varying degrees of murder... we have crimes that punish intent, etc. We have mitigating factors, like pre meditation, passion, self defense. The system itself is designed to hold two factors - the burden of proof, which is objective, and the sentencing, which can be subjective.

    There are dozens of conditions that change the way one is sentenced... ranging from character witnesses (ie: not safe to return to society, subjective, most commonly found in 'danger to society' cases)... from turning oneself in (without pressure), to influences (ie: family held hostage)... Circumstances are a fundamental aspect of law.

    As an aside, I'm pretty sure that judicial activism does not refer to intent as a method of mitigating sentencing... Far as I know, even reading the definition, you really have to stretch the literal and derogatory meaning of the phrase to use it here.

    These parents were convicted of;


    malice murder, felony murder,


    Consider the very nature of these crimes. Malice felony murders don't require intent - they require you to be in the throes of another crime (!) when the murder happens. What crime?


    cruelty to children, involuntary manslaughter


    Except that manslaughter can't be considered the intial crime (unless proven to be also in an unlawful act)... so... that leaves cruelty to children.

    Which they did deserve to get hit with (by definition, here.) The other crimes were tacked on (first degree cruelty to children is still a felony) as a way of creating a mandatory sentence, nothing else. This is despite there being provisions for manslaughter, neglect... but those don't require minimum life sentences. The whole thing was engineered from the start. I haven't read the case, but there is a reason why guilt (technical) is objective, while sentencing has long since been used as a way to mitigate the technical guilt.

    So, they are technically guilty of the four crimes, yet individually they are not. The framework is solid, the jury is correct in their decision. Is the sentence fair? From what I have read of the case, it is not. The minimum sentence of life in jail serves no purpose - the crimes that took place are already covered individually and would add up to somewhere around 50 years in prison anyway.

    Ironically, the definition of judicial activism is positive, not negative, and the spin used on the word has redefined it. ( here ) Note that part of the definition requires intent as well.

    (IANAL, but I play on on TV So grains of salt for everything)

  5. #105
    Lallygag Moderator Geoff's Avatar
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    Quote Originally Posted by ptgatsby View Post
    I completely disagree. The subjective component is a fundamental aspect of criminal law. The whole system is based around variations on this... we have varying degrees of murder... we have crimes that punish intent, etc. We have mitigating factors, like pre meditation, passion, self defense. The system itself is designed to hold two factors - the burden of proof, which is objective, and the sentencing, which can be subjective.
    What do you completely disagree with? Didn't you just agree with me that the system is based around objective guilt and then subjective sentencing based upon factors (perhaps moral) for the case/judge in question?

  6. #106
    Senior Member ptgatsby's Avatar
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    Quote Originally Posted by Geoff View Post
    What do you completely disagree with? Didn't you just agree with me that the system is based around objective guilt and then subjective sentencing based upon factors (perhaps moral) for the case/judge in question?
    Err... I guess so. I disagree that it's a bad thing Perhaps it's best to say that I disagreed with what you said, in response to what was said, up the thread (It's monday morning, give me a break! )

  7. #107
    Senior Member Hexis's Avatar
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    In my oponion this is another case of how parents fill they have the right to push upon their children a specific order of values and prinicipals. To many parents now of these days are scared that their children are going to grow up to be exactly what they hate. So they force feed them values and belief system not of their own. Instead of trying to gradually mold a care for a child.

    These where just two stupid vegans (i also think vegans are stupid in general, what dumb lifestyle) who thought that it was so wrong to use the natural life giveing resources of our planet to the point that they were willing to force their child in their foot steps.
    SDMF

  8. #108
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    Hmmm...for some reason, killing babies doesn't bother me, for I hate kids.

    Yes, children are our future, but the with advancements in technology, we won't need to reproduce that way -- cloning will be used instead, producing a full-grown mature newborn!

    Although when I'm President, there will be limits set upon everyone's brain power except for my own!

  9. #109
    Senior Member wildcat's Avatar
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    Quote Originally Posted by Uberfuhrer View Post
    Hmmm...for some reason, killing babies doesn't bother me, for I hate kids.

    Yes, children are our future, but the with advancements in technology, we won't need to reproduce that way -- cloning will be used instead, producing a full-grown mature newborn!

    Although when I'm President, there will be limits set upon everyone's brain power except for my own!
    Are you a clone of Wolfie or one of Mengele himself?
    Do not mesh with the Brazil boys!

  10. #110
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    No. I'm Heinrich I...resurrected courtesy of that other goofy looking guy with the blond 'stache -- I believe he shares my name, yes?

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