Some thoughts on intoxication and the commission of crime

In South African law, intoxication still serves as a defence in criminal matters in certain circumstances, despite an attempt by legislation to deal with the matter. In the first instance, however, a distinction is drawn between voluntary intoxication, and situations where the perpetrator became intoxicated as a result of occurrences he (or she) had no control over. In the latter instance one thinks typically of those “date rape” situations, where the drink is spiked. Obviously the person can not be held accountable for things that he or she has no control over. South African law recognises intoxication in these situations as a total and competent defence available to the person who was intoxicated while committing a crime.

In the case of voluntary intoxication the doctrine of actio libera in causa applies, in terms of which the perpetrator who deliberately becomes intoxicated in order to commit a crime, is held fully responsible. Where the intoxication is not the result of an intended commission of a crime, but does lead to a state of mental disease or incapacity, the normal rules in respect of a defence of mental incapacity apply. These forms of intoxication, i.e. involuntary intoxication and mental incapacity resulting from intoxication are not very common, and there is very little in the line of reported case law dealing with these situations.

The problem arises in typically the “night out” situation where people are out enjoying themselves and drinking alcohol, not realising exactly how intoxicated they actually are, or how much their faculties have been impaired by the intake of alcohol (and often other substances, even legal substances such as tobacco). The majority of cases where intoxication is raised as a defence, will arise from occasions where the intake of alcohol does not lead to mental incapacity, and the person did not start drinking in order to, for example, get up enough courage to commit an offence.

Since 1981, the matter has been dealt with in South Africa as follows:

(a) Where someone is so intoxicated that his or her actions can be regarded as automatic and devoid of any mental control, whatever the result of his or her actions, he or she can not be criminally liable. The defence here is one of “automatism”, i.e. having acted without having any cognitive control over the muscular movements.

(b) Someone may be so intoxicated as to be unable to appreciate that what he or she is doing is in fact unlawful or wrong. In such instances the person is held to have lacked sufficient criminal capacity, and can therefore not be found guilty of any crime.

(c) Where the person is intoxicated but not to the extent that he or she can not appreciate the wrongfullness of the act, it may still be that such person is too intoxicated to form the required intent to commit the act. Here the perpetrator may not escape liability entirely, as it is possible for lack of intent to amount to negligence, e.g. A stabs B while heavily intoxicated, as a result of which B dies. A is shown to have been too intoxicated to form the intent to kill B, but not so drunk that he could not have foreseen that B may perhaps die as a result of his act. He is therefore guilty of manslaughter, or culpable homicide, but not murder.

(d) Where the intoxication does not fall under any of the previous situations, the perpetrator does not escape liability, but the state of intoxication, and degree thereof, may have the effect of mitigating sentence.

In instances where the offence with which someone is charged requires only negligence to be proven, it is assumed that while the reasonable person is not someone who never drinks, it is nevertheless negligent of him or her to, for instance, drive a car while being intoxicated, as the reasonable person would appreciate that his or her abilities may be negatively affected by the intake of alcohol. Therefore, the person would also not escape liability. In my opinion, the same situation applies to where someone becomes the victim of crime.

Where you have had sufficient intake of alcohol to materially affect your inhibitions and understanding, it would hardly be just and equitable to punish someone else for your lack of appreciation of what you are saying “yes” or “no” to. Having said that, it does not mean that if you happen to be intoxicated, anyone passing by may be allowed to take advantage of the situation with impunity. All it means is that if both partners for example to an act of sexual intercourse are intoxicated, and neither are sufficiently coherent themselves or capable of appreciating the lack of understanding of the other, it follows that as a matter of equity and law, there ought not to be a conviction. Where someone consciously takes advantage of another’s intoxication, such act should carry a heavier penalty, as taking advantage of someone whose inhibitions have diminished ought to be an seriously aggravating circumstance.

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