European Journal of Law Reform

Article

Criminal Intent and the Ruthless Risk-Taker

Keywords genocidal history, criminal intention, ruthless risk-taker, punishment by stigmatisation, foresight
Authors Gary Lilienthal en Nehaluddin Ahmad
Author's information

Gary Lilienthal
Gary Lilienthal is a Professor of Law, Tashkent State University of Law, Tashkent, Uzbekistan.

Nehaluddin Ahmad
Nehaluddin Ahmadis a Professor of Law, Sultan Sharif Ali Islamic University (UNISSA), Brunei Darussalam; Email: ahmadnehal@yahoo.com (corresponding author).
  • Abstract

      Senator Jana Stewart said, on 27 July 2022, that Australia’s failure to cognise its genocides on First Nations people obstructs progress. The research objective is a critical analysis of criminal intention in genocide. A ‘ruthless risk-taker’ denotes a killer whose conduct was not directly calculated to kill, with callous disregard for human life, so as to label him or her as ‘murderer’. Officials continuing genocidal acts are ruthless risk-takers. The question asks about the character of criminal intent. Argument proposes that, in the English law, criminal intent to commit murder has been truncated by judicial legislation. The research is legal doctrinal research, set out as a legal narrative analysis. Judicial labelling was a precursor to punishment by stigmatisation, and juries should infer intent only for rare cases. This is because proof of the defendant’s foresight either of death or of grievous bodily harm, at minimum as a probable outcome of his or her actions was different from proof that he or she actually intended the consequence. Few ruthless risk-takers would have foreseen death or serious injury to the required degree. The cognitive approach to mens rea will never return a satisfactory answer to the ruthless risk-taker problem, without actual proof of intent. In consequence of these outcomes, genocidal acts in Australia must first be assessed as having been commissioned either by ruthless risk-takers, or not. If they were ruthless risk-takers, their intent must be proved at a very high degree of certainty. If not, their intent may be inferred from the natural consequences of their actions.

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