Ignorance

The selected readings on ignorance were generally reasonable, so I found little to challenge among them.  I agree with the jury’s decision in Reg. v. Prince.  Though the defendant thought the girl was 18, he could not justify taking her without her father’s consent unless she was 21, so he had mens rea.  In my opinion, once mens rea is proven, the accused is culpable for anything he has done.  That is one of the risks of intentionally breaking the law.  I believe this arrangement would change the behavior of would-be criminals, especially when attempting complicated crimes like bank robberies.  Holmes and his utilitarian brethren would likely agree with me.

Sensible as the readings were, they did not have much breadth, so I will spend the rest of this response asking more questions about ignorance and mistake.  For instance, Austin writes that the citizen has a duty to know the law of his own country.  What policy, then, should a country take toward tourists?  The government should not expect a visitor to know all its laws, but it should not grant him total immunity, either.  (Diplomats receive this immunity, but its purpose is to protect them from kidnapping or death in times of war, not from D.U.I. citations in times of peace.)  Since Western nations have similar codes of law, I doubt ignorance would be problematic among them; there may be confusion over drinking age and drug laws, but that would lead to nothing more than a few nights in jail.  Ignorance would be a huge issue, however, for travelers between the West and the East.  For instance, if an American woman travels to a country which practices sharia law, is she obliged to follow all of that nation’s customs?  What about an African tribesman who is arrested for stealing in America, but who lacks mens rea because he believes in communal property?  I believe cultural ignorance should mitigate punishments for travelers, but this generality is not sufficient to judge individual cases.  This branch of international law merits more investigation.

I would also like to examine the case of amnesia.  If a person loses his memory, he may forget the law as well, so should we hold him responsible for any crimes he commits in that period?  I would say no.  What, though, should we do with a criminal who loses his memory?  Should he still be held culpable for crimes he does not remember committing?  On a moral level, it seems fair to excuse him on the basis of ignorance.  It seems we would be punishing the wrong person.  On a practical level, however, admitting this excuse would inspire other criminals to falsely claim amnesia.  The defendant would have to use scientists to prove his argument; polygraph tests might be especially effective.  What would become of a person who regains his memory months or years after the trial?  We could not bring charges against him twice.  The most fair option, then, would be to delay the trial for five or six months to see if the criminal’s memory returns.

Most scholars agree we should not hold the insane or children accountable for crimes because they are not capable of making their own decisions.  I would like to hear their opinions on the proper treatment of juveniles between the ages of 13 and 18.  For instance, Andrew Riley of Ohio was recently charged with 128 felonies, including theft, vandalism, and intimidation.  He is 13 years old, too young to give informed sexual consent, too young to spend life in prison, but old enough to spend significant time in juvenile detention.  So, he is considered partially ignorant about violence and totally ignorant about sex.  Andhow many times have adults said of their childhood indiscretions, “I didn’t know better”?  Adolescence is a complicated age, indeed.

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