How should the criminal law treat a person who did not pay any attention to the existence of attendant circumstances noted in the definition of an offense? This mental state of lack of attention to the existence of the attendant circumstance is analogous to the existence of a void in the actor’s consciousness, and has therefore been awarded the name “cognitive void.” Because the criminal law is founded on cognitive theory that offers a binary concept to establish an accused’s state of mind depending on the existence or absence of cognition, it is difficult to impose criminal liability on an actor who acted out of a cognitive void. The purpose of this Article is to discuss the difficulty that it engenders and the attempts to solve this difficulty. The Article presents the proposed thesis, suggesting that different states of cognitive void should be examined in accordance with the extent of culpability that they represent. Therefore, the Article calls for the abandonment of the prevalent basic assumption that sees cognitive void as a state indicating lack of subjective mens rea, and suggests replacing it with a normative approach that would recognize cognitive void as a multidimensional term covering a range of different mental states.
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Research Article| August 01 2015
Cognitive Void In Relation To Attendant Circumstances As Subjective Mens Rea
New Criminal Law Review (2015) 18 (3): 418–476.
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Guy Ben-David; Cognitive Void In Relation To Attendant Circumstances As Subjective Mens Rea. New Criminal Law Review 1 August 2015; 18 (3): 418–476. doi: https://doi.org/10.1525/nclr.2015.18.3.418
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