The inconvenience of the reasonable person standard in criminal law
Resumo
Following American legal sources, I argue that the use of the reasonable person standard in criminal law is inaccurate and unfair, and, therefore, inconvenient to evaluate human behaviour based on three arguments which address flaws of the standard under analysis. Firstly, this standard is by definition abstract, theoretical and general, not reflecting appropriately the person’s sensory and ideational perception of the situation. Secondly, the trend in American legislation and case-law is to apply, in criminal cases, e.g., self-defence, a hybrid criterion, which consists in the consideration of a person’s belief and the correspondence of such a belief to what a reasonable person would believe under the circumstances, as opposed to a purely objective standard. The principle of individual criminal culpability underlies this. Thirdly, the reasonable person standard imposes a sort of majority’s dictatorship by perpetuating a predominant culture disregarding the viewpoints from minority groups.
Referências
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Fletcher, George (1978). Rethinking Criminal Law. Boston/Toronto: Little Brown, p. 247.
Fletcher, George (1988). A Crime of Self-Defense: Bernhard Goetz and the Law on Trial. Chicago: The University of Chicago Press, p. 40.
Fletcher, George. A Crime of Self-Defense, p. 42.
Lee, Cynthia (1996). «Race and Self-Defence: Toward a Normative Conception of Reasonableness». Minnesota Law Review, 81 , p. 387.
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Simons, Kenneth (2008). «Self-Defense: Reasonable Beliefs or Reasonable Self-Control». New Criminal Law Review, 11, p. 77.
Singer, Richard (1986). New York Law Journal, 18 February 1986, p. 1. Cited by Fletcher, George. A Crime of Self-Defense..., p. 60.
State v. Bellino, 625 A.2d 1381, 1384 (Conn. App. 1993).
State v. Norman, 378 S.E.2d 8, 10 (N.C. 1989)
State v. Peoples, 621 S.W.2d 324, 327 (Mo. Ct. App. 1981).
U.S. Model Penal Code § 3.04 (1) (a).
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