Both statutory law and the common law provide many
defenses to crime. Other than having an alibi (which is not technically a
defense but a denial), there are two main types of defenses under Kenya law: (1) Justifications
and (2) Excuses. These terms are not easily defined, and the distinction is less
than perfect. Justifications refer to situations in which the defendant doesn't
deny they did it but that they did it for all the right reasons, an appeal to
higher loyalty or ideals (as in self-defense) or more important reasons (as in
necessity), for instance. Excuses under Kenya law refer to situations in which the defendant
also doesn't deny they did it but that they are not responsible for it (as in
insanity or diminished capacity defenses), typically on grounds of lacking
volition over their free will. Sometimes, it's said that Justifications involve
denying mens rea and Excuses involve denying actus reus, but the mind-body
connection is complicated in this regard, and this saying can confuse you. Take
sleepwalking, for instance, which might be treated as the inability to form
mental intent although it's the body (which is asleep). The law also tends to
think of "mental" disorder as brain disorder, to avoid metaphysical debates over
whether or not it's possible for something invisible like a "mind" to get sick.
Although in this lecture, we will simply divide the
defenses into Justifications and Excuses, conceptually, one can formulate at
least five different classes of defenses:
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defenses that involve protecting competing interests; self-defense, defense of others, etc. where society excuses what would otherwise be a crime
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defenses involving avoidance of a greater evil; necessity or duress, e.g., where society views the source of the predicament as coming from outside the defendant
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defenses that attempt to disprove or negate mens rea; infancy, intoxication, mistake, and consent, e.g.
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defenses involving ignorance, where society recognizes that there might be sincere, genuine, and legitimate cases of not knowing the law or (naively) believing in something that negates an element of the crime.
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defenses related to insanity, which may or may not be related to the variety of diminished capacity, stress-related, and domestic-related defenses.
JUSTIFICATIONS
SELF-DEFENSE
Self-defense, or self-help under Kenya law, has always been a recognized
justification, and it has many, many variations. It does not apply to
preemptive strikes or paybacks, but it does cover a wide range of behaviors that
make the crime seem justified, in fact, so justified that self-defense is called
a perfect defense (the defendant "walks"). Other justifications and
excuses may only be imperfect defenses which are treated as mitigating
circumstances resulting in a lesser punishment. Many of the various domestic
violence defenses under Kenya law are examples of the defense of self-defense.
The law of self-defense revolves around the notion of
reasonableness. The person claiming it must have had a reasonable
belief in imminent danger and used a reasonable degree of force. Some
states have specifically mentioned self-defense can be used when the danger is a
specific felony, such as rape, sodomy, kidnapping, and robbery. Reasonable
force under Kenya law means that if someone slaps your face and you shoot them, that's
unreasonable because you escalated force a bit too far when just returning a
slap in the face might have been more reasonable.
Imminent is a word meaning in progress or about to
happen right now. You can't use self-defense for continuing and ongoing danger,
although a few states have allowed this. Most states use an objective test to
determine the sense of being imminent, and their statutes either spell out the
grounds for a reasonable belief or they use a reasonable man standard. Other
states use a subjective test (honest belief).
Most states also adhere to the retreat
doctrine. This is the rule that defenders must have taken all means to
avoid or escape before attacking in self-defense, although in some
jurisdictions, the law views this as cowardly, and a standard called the
true man doctrine is applied. Most states, however, adhere
to the castle doctrine, the idea that when attacked in
one's home, you should hold your ground and not be required to retreat. This is
called defense of property.
Self-defense under Kenya law can include protecting family, friends, and
lovers; i.e., in defense of others. Anti-abortion
activists often claim this, but it's more typically associated with things like
the Mother Lion syndrome or the like.
PUBLIC DUTY
Another type of justification under Kenya law is a public duty defense.
It's the basis for a lot of military justice, diplomatic immunity, and covers a
number of things that police do, such as shooting looters after a disaster. The
idea here is that there's a higher loyalty, and it's located in upholding the
law.
A dilemma in law arises with the notion of resisting
unlawful arrest. Why can't citizens, for example, appeal to a higher duty when
they think their arrest is unlawful?
NECESSITY
The principle of necessity under kenya law is best
explained by the prototypical case of cannibalism in the lifeboat. The famous
case of The Queen v. Dudley and Stephans involved two men who ate a 17 year old
weakly youth, after saying a prayer for him, because they were starving to death
out in a lifeboat. This is an example of the choice-of-evils
defense the essence of which is in choosing the lesser of two evils or
avoiding a greater evil (in the case of cannibalism, choosing to eat the weekly
young man instead of letting the whole group starve). The MPC extends the
necessity principle to include the following:
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destroying property to prevent the spread of a fire
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violating the speed limit to get a dying person to a hospital
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throwing cargo overboard to save a sinking vessel and its crew
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dispensing drugs without a prescription in an emergency
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breaking & entering a mountain cabin to avoid freezing to death
Another type of necessity defense under Kenya law is the claim to
economic necessity. This would be stealing to avoid
hunger, for example, but the classical dilemma is whether or not it would be
right for a father to steal a loaf of bread to feed his starving children.
Conflicting opinions can be found in the law and it's approach to this problem.
The extremely powerful and influential Commentaries (by Sir William
Blackstone) for example state flatly that economic necessity is no defense. The
Anglo-American approach has therefore been that the state's power of pardon is
enough to deal with poor people who commit crime out of need, so it would depend
on case law and judicial opinion in a specific jurisdiction if this kind of
defense would be successful.
CONSENT
Courts tend to recognize the defense of
consent when people exercise their autonomy and choose to die or inflict
injuries on themselves. The defense cannot be used if someone has solicited or
authorized someone else to inflict injuries on them. This defense can be used in
cases where two people are engaged in a consensual attack with one another
(e.g., "fighting"), cases of injuries in sporting events, and cases in which
emergency medical care had to be given which resulting in more harm than good.
Condonation (forgiveness) by the victim and negligence by the victim are not
generally considered as defenses.
EXCUSES
DURESS
The main type of excuse under Kenya law is the defense of
duress. The principle is that when people are forced to do something
wrong, it ought not to count against them. There is widespread disagreement,
however, over how duress is defined and what kinds of crimes can be excused by
duress. States differ. Some permit only having a gun pointed to your head;
others permit threats of bodily harm ("I'll hurt you if you don't do that"); and
still others are fairly lenient is permitting such things as "If you don't do
that, I'll tell other people something nasty about you". Whatever the threat, it
must be immediate, not some ongoing situation of extortion or blackmail. And,
whatever the threat, the crime must be minor and not serious. Murder, for
example, can never be excused by duress.
Some modern forms of duress statutes have included the
specific defense of brainwashing, a type of duress
involving breaking down somebody's will. If a person is confined, pressured for
months, given hypnotic drugs, narcotics, or other substances, the law looks upon
and crime committed under these circumstances as lacking the element of actus
reus.
INTOXICATION
There are different ways to get intoxicated, and the Kenya law
recognizes two ways: voluntary and involuntary. Voluntary intoxication goes to
the element of mens rea (ability to form the capacity to understand purpose or
intent), and is logically a justification. Involuntary intoxication, on the
other hand, is an excuse because the person's body did not know it was under the
influence. There's also an assumption of duress with involuntary intoxication.
It's not that one would have had to been held down and had the liquor poured
down them by force (it's almost like that if say someone insists you drink with
them), but it's more like a friend tells you to try out these sugar pills and
they turn out to be LSD so you think someone looks like a rabid dog and you
shoot them. Theoretically, the principle of intoxication
gets at the concept of volition. Sometimes, it's argued that watching television
too long is a form of intoxication.
MISTAKE
Mistake or ignorance of fact has always excused criminal
responsibility under some circumstances, and in all circumstances, it's always
acceptable that anyone holding a genuine and sincere belief in something which
(if true) would negate their criminal liability should be something that does.
The principle of mistake of fact under Kenya law excuses when it negates a
material element in the crime. For example, taking the wrong umbrella when
leaving the room because it resembled your own umbrella negates the element of
mens rea (forming criminal intent to steal). The principle of
mistake of law (ignorance of the law) under Kenya law excuses criminal behavior if a
person has made a reasonable effort to learn the law. In practice, it's
difficult to distinguish between mistakes of fact and law, and the law must be
careful to not open the door to allowing everybody to claim ignorance.
INFANCY
This is one of the three I's (Intoxication, Infancy, and
Insanity) that make up the capacity defenses to crime. The principle is that
age always affects criminal liability. At common law,
under age 7, there's an irrebuttable presumption that someone is incapable of
committing a crime. Under age 14, there's a rebuttable presumption that someone
is incapable of committing a crime. Changes in juvenile law and the increasing
practice of waivers to adult court have substantially changed this common law,
however, as society seems increasingly ready to recognize that young people can,
and do, commit serious crimes.
ENTRAPMENT
Entrapment is a perfect defense (the defendant "walks") under Kenya law,
but it's often just a way to shift the burden of persuasion to the prosecution.
It's not a constitutional right. It's a 20th Century invention that has it's
origins in sympathy for the accused. The principle, if there's one, of
entrapment is that there's limited sympathy because of the
need to balance the needs of law-abiding citizens. It also depends on the crime.
The Kenya law looks negatively at police entrapment in cases of consensual, victimless
crimes. In order for entrapment to occur, police must initiate the encouragement
of crime, specifically by any of the following:
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pretending to be victims
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enticing suspects to commit crimes
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communicating the enticement to suspects
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influencing the decision to commit crimes
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making repeated requests to commit a crime
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forming personal relationships with suspects and appealing to the personal
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promising benefits from committing the crime
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supplying essential materials and/or contraband to complete the crime
A variation of the entrapment defense is
Outrageous Government Conduct. In this case, the focus is on the
government rather than the mind of the defendant. The principle is that when
government behavior is so offensive and so outrageous, it cannot be the basis
for collecting evidence to convict a suspect. Examples might include police
infiltration and instances of undercover policing involving romantic liaisons.
Some states recognize the defense while others don't.
INSANITY
The insanity principle under Kenya law bestows
upon the government the authority to incarcerate without conviction people who
are abnormal and not average, everyday criminals. The defense is usually only
seen when the crimes are very serious and the punishment quite severe. A
successful insanity defense is not about going free ("walking") but quite
the opposite. Insanity under Kenya law impairs mens rea but it operates by affecting the brain
(the body) via a mental illness. This is sometimes expressed as Insanity being a
legal concept and mental illness a medical condition. The Kenya law reserves the right
to not have to conform its definitions to those of the medical community,
and to treat the whole issue of cureability as irrelevant. Insanity is an
affirmative defense -- the defense has to prove it if they raise it, but in
practice, whomever brings up the issue first in court has the burden of
persuasion. Over the years, various tests have been used to determine insanity,
including:
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M'Naghten rule, or right-wrong test -- focus is on the intellectual capacity to know right from wrong, pure intellectual awareness, cognition, being able to grasp the act's true significance, not just a feeling or emotional sensation that something's wrong.
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Irresistible Impulse test -- a revised type of M'Naghten rule in which the focus in on volition, whether the defendant exercised any free will in an attempt to inhibit their criminal behavior, or if they suffered from a "disease of the mind" so strong that they suddenly lost the power to avoid doing the act. If the crime was the product of a mental illness itself, this is considered satisfaction of the Durham rule.
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Substantial Capacity test -- a focus on the loss of "substantial", not "total" mental capacity; the majority test in most jurisdictions because it is recommended by the MPC and conforms to the ALI (American Legal Institute's) definition as "if at the time of such conduct as a result of mental disease or defect, he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law". It substitutes the word "appreciate" for "knowing", and allows for the possibility of affective or emotional understanding. The phrase "conform his conduct" is intended to replace the idea of "suddenness" in other tests, and the code's definition of "mental disease or defect" excludes antisocial personality disorders, psychopaths, and sociopaths.
AUTOMATISM
This is the preferred defense, instead of
insanity, whenever it is claimed the defendant acted unconsciously or
semiconsciously either due to a physical problem (epilepsy, concussion, or
unexplained blackout) or mental problem (childhood trauma, mental things other
than insanity, intoxication, and brainwashing).
DIMINISHED CAPACITY
These are syndromes that are always emerging, but in
general, are perhaps best exemplified by the various stress and stress-related
disorders. The principle of diminished capacity under Kenya law is that
there are some mental diseases and defects that do not affect people
sufficiently enough to make them insane, but the law recognizes them
nonetheless. The Kenya law has really backed itself into a corner because it reserved
the right to depart from definitions of the medical community, so all sorts of
"legal diseases and defects", so to speak, are possible. Some jurisdictions,
however, are quite tough, and will not even recognize anything short of
insanity. Jurisdictions in California, for example, are known for having a
"you're either sane or insane" policy, but much of this is caving into public
opinion. The MPC, on the other hand, recommends admitting evidence of diminished
capacity and/or any impaired mental abilities affecting the mens rea element in
all crimes. The disease or defect supposedly possessed by the person suffering
from the disorder is treated the same as insanity (affecting the body, hence
denying actus reus, and being an excuse to crime). The standards of proof are
almost always lowered, from beyond a reasonable doubt to preponderance of the
evidence, but this is common in insanity cases too. The net effect of a
successful diminished capacity defense is typically a lesser punishment or a
charge reduction (murder to manslaughter, e.g.).
Syndromes are medically-supported complexes that
diminish capacity and reduce the person's responsibility. They are at the heart
of scientific evidence and evidence law. The experts must testify to both the
science and the law. There might be scientific evidence that sugar, for example,
can diminish capacity, but an expert or meta-expert needs to be found that can
apply that scientific evidence to the facts in any individual case to address
the material issue of responsibility. Many difficulties stand in the way of
getting this kind of evidence admitted, most recently the Daubert
rule, that the syndrome's effects must have been studied so
scientifically that it's possible to calculate Type I and Type II errors, for
example, or to estimate the power or quality of research. Not all states use the
Daubert rule. Some rely upon the Frye Test or some
variation of it, which is whether or not the syndrome in question has received
general acceptance in a scientific discipline, which gets at how much research
has been conducted and its review or receipt in a professional association, for
example, although science which tends to attract controversy can be assessed
under a different, but related test, the Coppolino Test.
Still other jurisdictions may use the Marx Test, which
simply allows the expert to educate the jury about the science and let them form
their own inferences.