Intoxication-Intentional or Culpable Irresponsibility: Art. 50

The problems intoxication poses to the criminal justice system, and to law enforcement in particular, are by no means negligible. Drug addiction and alcoholism remain two of the foremost-unsolved problems confronting the criminal justice system of many countries.  To hold perpetrators responsible for crimes committed under the influence of either may not be a solution, but may have a minimal advantage of making treatment services accessible for them.

Alcoholism may constitute a disease provided it has damaged the brain to an extent as to grossly impair the ability to make rational judgment and emotional responses. On the other hand, though the taking of alcohol inevitably impairs judgment and the ability to control the emotion, its transient effect cannot be accounted as a “disease”. Therefore, the question lies as to under which of the two conditions one is exempted of criminal liability. Further, a person is deemed voluntarily intoxicated when he takes an intoxicant including alcohol, drugs or any other thing being aware that it is or may be an intoxicant and he takes it in such quantity as impairs his awareness or understanding. Or a person may be involuntarily intoxicated say, for the purpose of medication or being under coercion. The question that repeats itself here is that under which one of the conditions the doer can claim exemption from criminal liability?  Alcoholism, whenever it constitutes a disease, depending on the extent it affected the ability to make rational judgment and emotional responses; it would justify irresponsibility or only diminished responsibility.

Voluntary and Involuntary Intoxication:

Regarding intoxication, whether voluntary or involuntary, most penal codes flatly state that intoxication is not defense which is actually, not true. Involuntary intoxication, for example, because of prescription medication or coercion can constitute a defense. Where an offense is committed under intoxication caused due to fraud or coercion, the intoxicated man may not be said to have acted on his own accord, and therefore, is not responsible for the consequences of his acts. The justification for such a provision is based on the contention that the accused had himself not contributed to his drunkenness, which was not likely to be repeated as in case of voluntary drunkenness.

Most courts in America have held that even voluntary intoxication, when sever, may render a person incapable of forming certain specific types of criminal intent, which is an ingredient element of the crime in question. For example, murder in the first degree requires, among other things, premeditation and deliberation. Many courts have also held that if a defendant was so grossly intoxicated that he or she could not premeditate and deliberate, he or she can at best found guilty of murder in the second degree. To that extent, the law on intoxication conforms to the mens rea principle. But American law does not absolve intoxicated perpetrators of all criminal liability: gross voluntary intoxication may simply lower the degree of the crime committed. (Adler, Mueller and Laufer)

Generally the development of the law on drunkenness has passed through the following three stages:

1. That insanity, whether produced by drunkenness or otherwise, is a defense. The distinction between the defense of insanity in the true sense caused by excessive drinking, and the defense of drunkenness, which produces a condition such that the drunken man’s mind becomes incapable of forming specific intention, has been preserved throughout the case. The insane person cannot be convicted of a crime. There was no law that takes note of the cause of insanity. If actual insanity in fact supervenes as a result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause.

2. That evidence of drunkenness, which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts, proved in order to determine whether or not he had the intent.

3. That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts. (Gaur)

The defense of drunkenness and its legal effects in Ethiopia is prescribed under Art. 50 and the discussion are followed here after. The provision is chiefly intended for persons who with some state of mind contravene the law while under voluntary influence of alcohol or drugs or any other means. It is based on the rule that intoxication is no defense if caused by the offenders’ voluntary act.

The main deference between Art. 50 and 48, 49 is not the bio-psychological condition of the offender but it is the condition, that creates the irresponsible nature of the offender. Unlike the legally recognized causes under the preceding articles, under this article, it is the doer who puts himself into a condition of irresponsibility or of limited responsibility by means of alcohol or drugs or by any other means.  Speaking objectively, the doer’s condition at the time of the offence was that of a mentally deficient person and may lead to say he should be treated in the same manner as the mentally deficient a person regardless of the fact that he himself deliberately created this abnormal condition. But speaking subjectively, intent existed before the offence was committed, since the accused was capable of forming a specific intention prior to intoxicating himself. Under this condition, the person not only did he voluntarily place himself in an abnormal condition, but he did so in order to carry out a decision which he had freely made. This is also applicable to circumstances under which a person voluntarily places himself in a state of irresponsibility when he knows and accepts the possibility of doing wrong. Therefore, in the cases coming under this condition, the court must ensure that the case actually committed is that which the accused directly or indirectly intended when he intoxicated himself. This is applicable in relation to both offenses of commission (if A drinks in order to kill B) or omission (if A, a soldier on leave drinks so as to disable himself from going back to his unit). Art. 50(1) supports the second conception, which prevents an accused benefiting from the provisions of Arts.48 and 49 on the sole ground that he committed an offence, while in an abnormal condition that was created by himself.  Thus, the fault of the doer operates as an absolute prohibition from invoking Arts.48 and 49. Instead, in such cases, the offender may be convicted and sentenced as though he had been fully responsible at the time of the act.

The second condition by which an offender shall not be benefited from the provisions excluding or reducing the punishment is when a person who commits an offence in a state of partial or complete irresponsibility in which he placed himself, not for the purpose of committing an offence, but when he knew or should and could have known that he was apt to do wrong while being in an abnormal condition (Art.50/2). Under this sub-article, a person drinks or consume drugs, though he foresees, but rejects, the possibility of doing wrong or he is not, but should and could be aware that he may do wrong. This therefore is applicable to states of negligence—advertent and inadvertent. The implication here is that the doer will not be held liable if the wrong he has done is not punishable.

The third situation with which Art.50 deals is that of an accused who, having placed himself in a condition of complete irresponsibility commits or attempts to commit an offence with which he did not intend to commit; nor could and should he have foreseen the possibility of committing it. For instance a person may in a particular quite and cold evening staying home alone begin to drink with intent to get himself warm and relaxed but may get completely drunk and commit a punishable act. In such instances, the accused is not liable to punishment under sub-art.3, as the person has neither criminal intention nor criminal negligence existed before he intoxicated himself. According to Art.57 (1), he should, therefore, go free because he is not guilty of the offence committed. However, the need to ensure the peace of the public justifies that the offender should be punished and should not be permitted to excuse himself on the ground that he did not mean to do any harm prior to getting drunk. Under sub-art.3, this conflict is solved by holding the doer not of the offence actually he committed but of a special offence against public safety (Art.491). Art.491 is based on the assumption that anyone who intoxicates himself is always a latent menace for others and that he is punishable as soon as he creates a concrete danger, i.e. he commits an offence.

The Defence of Intoxication At A Glance:

The following important inferences can be drawn from the above legal provisions:

- Voluntary drunkenness is not defiance for the commission of a crime, except for minute variations in the liability.

- Sub- Art. (2)  reduces the defendant’s liability to negligent commission of the crime which according to Art. 59/2 is punishable only if the law expressly provides for punishment.

- Su-Art. (3) deals with act neither contemplated nor intended which is committed in a state of absolute irresponsibility and prescribes punishment in accordance with Art. 491 provided that such act is normally punishable with at least one year’s imprisonment. Under Art. 491 the defendant is punishable with fine or with simple imprisonment not exceeding one year, according to the degree of danger or gravity of the act committed.

- Involuntary such as, the thing which intoxicated him was administered to him without his knowledge or against his will shall afford him a valid defence as it does not amount to putting himself into the state of irresponsibility.

Voluntariness here has to be understood clearly. There are two things to be distinguished:

• Voluntariness relating to the act of getting intoxicated,
• Voluntariness in doing the act subsequent to the intoxication.

There can a ‘state of incapacity’ produced either by drinking voluntarily or involuntarily. Once the state of incapacity is produced it means that the person is incapable of doing things voluntarily i.e. he is irresponsible either absolutely or partially. However, Art. 50 is concerned with the combination of two factors:

1. He should not have by his own fault out himself in the state of drunkenness,

2. Whish makes him absolutely irresponsible so as to satisfy the essentials of Art. 48 or partially irresponsible so as to fit in to the requirements of Art. 49.

If the defendant gets intoxicated voluntarily:

• he is fully liable under Sub-Art (1) of Art. 50,
• he is liable for negligently doing it under Sub-Art.(2), if he is aware, or could  or should have been aware of the likelihood of committing a crime subsequently,
• he is liable for committing disturbances resulting from acts committed in a state of culpable irresponsibility under Art.491 of the Special Part, if he is completely unaware of the likelihood of committing a crime subsequent to intoxication.

Doubtful Cases

Although nowhere in the Code specifically said so, every accused is presumed to be responsible for his acts. Therefore, as a general rule, the alleging party need not prove that the accused was capable, at the time of the offence, of understanding what he was doing and of behaving accordingly. This presumption, however, is destroyed if doubt arises regarding the offender’s mental stability. The court may fall in doubt about the responsibility of the accused as there are objective reasons to doubt or any of the conditions identified by law are found. And the court cannot proceed before clearing the doubt either through medical examination and inquiry into the character, antecedent and circumstances of the accused. On the basis of the finding, the court shall make such decision, as it thinks fit.

• Conditions where the Court Falls in Doubt about the Responsibility of the Accused:

The first condition where the court is allowed to doubt about the responsibility of the accused brought before it is when the accused displayed any sign of insanity. In fact Art.51 (1) does not specify how the ground of the doubt should be serious. But almost certain that a mere informal conduct displayed in the courtroom is inadequate for the court to fall in doubt about the mental condition of the accused. Instead there should be objective reasons for the doubt (e.g. the accused is interdicted by civil court, the accused produce a medical proof to the effect that he is suffering from a given mental disease, etc.). In other words, if its doubts arises from factual elements and not mere conjecture, the court is obliged to obtain medical evidence and it should do so of its own motion even though the accused is not affected as provided for in the second alinea of sub-art (1) or does not raise a defense of insanity.

The second situation in which a medical examination must be ordered is that where the accused shows any symptoms of derangement of the mind or epilepsy, or he is deaf and dumb or suffers from chronic intoxication due to alcohol or drugs. In these instances, it is immaterial whether or not the court is in doubt as to the offender’s mental stability. The court is rather presumed to have such suspicions because the accused is in such a condition that there exists what might be termed as a presumption of irresponsibility.

In either of the above conditions, the court is bound to obtain the medical evidence. It may, in addition, require other evidences to help the court to clarify the point in issue.

• Duties of the Medical Expert:

According to Art.51 (2), the duties of the medical expert are of two folds. First, the medical expert shall investigate whether any of the biological causes of irresponsibility or limited responsibility mentioned in Art.48 and 49 is present and what its effects. What the court expects the of medical expert is to state whether the offender’s faculty of “judgment and free determination were affected by some biological defects and, if so, whether the deprivation was complete or partial. In this case the essential time reference is the time of the commission of the crime. Only this time is important to determine irresponsibility. However the mental condition of the offender at the time of trial is also important to determine whether the offender is capable of standing on trial. Accordingly, most criminal codes authorize the court to order medical experts to examine and state the mental condition of the offender both at the time of the commission of the crime and at the time of trial. The Amharic version of sub-art.2, second alinea accurately refer to both the time of the commission of the crime and the time of the trail. The English version, however, refers solely to the time of trial and many agree that this simply an oversight.  Secondly, the medical expert advise the court as to the curative or protective measures that it might be necessary or desirable to order should the accused be found not fully responsible for his acts.

Case Problem:

Three friends Khalid, Addisu and Binyam went to a restaurant to celebrate the birthday of Addisu. They started taking drink after drink and were enjoying their time. During their conversation they picked up an argument over an issue and Biniyam got really angry with some of the arguments made by Khalid and seriously left the place and went out. Biniyam was fully drunk by that time. After sometime he reappeared there and continued to drink with his friends. Then Khalid teased him over the matter once again. Biniyam this time got enraged and took a beer bottle and hit Khalid hard on his head. Khalid had a profuse bleeding due to the cut wounds by the sharp edges of the bottle and was rushed to the hospital by both Addis and Biniyam. Unfortunately Khalid died after two days of medical treatment.

Can Biniyam raise the argument that he his case should be treated under Art. 50/3?

Note these points:

1.It was a case of voluntary intoxication.

2.The commission of the act was neither contemplated nor intended as is clear from the facts. They were friends and celebrating a birthday.

3.No evidence of previous enmity or even any disturbances between them.

4.Assume that provocation as defence is ruled out as it was not a case of gross provocation.

5.Assuming that Art. 50/3 can be rightly applied to the facts of the case, can this case be appropriately be dealt with under Art. 491?

6.Do you think that any case is punishable with at least one year of imprisonment (and above) can rightly be brought under Art. 491?