Apr 15, 2025
Degrees of culpability in criminal law: Intent, negligence, and special regulations
One of the fundamental principles of criminal law is that punishment requires subjective guilt. But what degree of guilt is required for an act to be punishable? This article provides an overview of the degrees of guilt in Norwegian criminal law, the main rules and exceptions, as well as the particular challenges that arise in the interpretation of different types of penal provisions.
The Main Rule in the Penal Code: Intent is Required
The main rule concerning the degree of guilt in Norwegian criminal law is found in Section 40, first paragraph, of the Penal Code: "For one who has not acted with intent, the provisions of this law pertaining to punishment shall not be applied, unless it is explicitly determined or unambiguously assumed that negligent actions are also punishable."
This means that for violations of the Penal Code, intent is generally required. When the criminal provision only describes the objective situation, for example, "anyone who commits violence against another person" (Section 228) or "anyone who causes another's death" (Section 233), Section 40 implies that only intentional violations are punishable.
Qualified forms of intent, such as purpose and premeditation, are only required when specifically mentioned in the relevant provision. Particularly practical is the intent of gain (intention to secure unlawful gain for oneself or others), which is a common characteristic of crimes involving gain. Premeditation is primarily relevant in cases of homicide and results in an increased sentencing range.
When is Negligence Sufficient?
Explicit Provisions
The Penal Code contains many provisions that explicitly target negligent violations, such as Sections 151, 237-239, and 391, 3rd paragraph. In such cases, it is clear that negligence is sufficient.
Unambiguously Assumed
In other cases, it can be "unambiguously assumed" that negligence is sufficient, even if not explicitly stated. An example is Section 431 on editor liability, where the editor is exempt from punishment if it can be demonstrated that no blame can be attributed to him regarding control or supervision.
Another example is found in Section 352, 2nd paragraph, which penalizes "anyone who causes a fire hazard through careless handling of fire or flammable substances." The Supreme Court has assumed that when the criminal provision is aimed at careless behavior, it inherently assumes that negligence should also suffice concerning the risk factor.
The Relationship Between Intentional and Negligent Violations
Where the Penal Code addresses negligence, the relationship is often such that it has two different penalty provisions:
A stricter one for intentional violations
A milder one for negligent violations
For example, Section 233 on intentional murder sets a minimum sentence of six years imprisonment, while the ordinary sentencing range in Section 239 for negligent manslaughter is imprisonment from 14 days to three years.
There are also certain provisions that equate intentional and negligent violations, such as Sections 359, 360, 362, and 418. Such equivalence can only be considered in cases of minor legal violations.
When reviewing the Penal Code, it is evident that many serious crimes are not punishable when committed negligently. This applies, for example, to deprivation of liberty (Section 223), most sexual offenses, and exposure to helpless situations (Section 242). The legislator has imposed penalties for negligence in offenses where negligent violation has significant practical importance, but not in cases where it can only be conceived in more rare exceptional cases.
In some cases where the law originally required intent, the penal provision has later been extended to also encompass negligence in order to make it more effective. This applies, for example, to Section 317 on receiving stolen goods and Section 271a on grossly negligent fraud.
The Special Rule for Omissions
Section 40, 2nd paragraph of the Penal Code contains a special rule for "offenses consisting of omission." Here, the usual rule is reversed: the offense is punishable even if committed negligently, unless the opposite is explicitly determined or unambiguously assumed.
The rationale for the rule is that in most criminal provisions of this nature, it is necessary to also address negligence because it is almost impossible to prove intent. As expressed in the motives: "When the laws impose a multitude of duties on citizens, for example, to appear as witnesses, as jurors, to sweep the street in front of one's house, to report deaths, etc., the purpose would undoubtedly be completely thwarted if one had to accept the excuse that one did not intentionally fail to comply with the law, but out of forgetfulness."
Even though the rule seems simple, it creates many interpretation challenges:
Which omissions are included? The provision applies only to "genuine omission offenses," that is, criminal provisions that directly target an omission. It does not apply to cases where a criminal provision that primarily targets active actions can in some cases be violated by passivity.
What qualifies as an omission offense? The exact expressions "omit" or "omission" are not required. Those who "neglect," "fail," "breach," or "do not comply with" their duties all fall under the rule. However, intent is required when the law targets those who "refuse," "resist," or "exercise ... authority over."
What about mixed criminal provisions? When a section contains alternatives that are partly described as omissions, partly as active actions, each alternative must be assessed separately.
Are there exceptions? In certain cases, strong reasons warrant requiring intent even if it concerns a genuine omission offense. This applies, for example, to the general assistance provision in Section 387, where the Supreme Court has required intent despite the provision's placement among misdemeanors.
The Guilt Requirement in Special Legislation
Section 40, 1st paragraph of the Penal Code limits its rule to "the provisions of this law." Concerning the degree of guilt required in special legislation, there is no general provision.
Often, special legislation itself contains explicit provisions regarding the degree of guilt required:
Some require intent, for example, the Patent Act
The main rule, however, is that intent and negligence are explicitly equated, for example, in the Vagrancy Act and the Road Traffic Act
Newer legislation typically contains explicit provisions regarding the degree of guilt, however, there are still criminal provisions where the law does not provide any rule on guilt.
In such cases, the courts have applied an efficiency principle: If the legal provision would not effectively achieve its purpose if only intentional violation could be punished, the presumption is that it was the law's intention for negligent violations to also be punished.
When a law contains several penalty provisions, it may happen that an interpretation based on the law's purpose leads to requiring intent under one paragraph, while negligence is sufficient under another. This holds true even if the law has a common penalty threat.
The Guilt Requirement for Delegated Legislation Authority
In cases of violation of regulations issued under the delegation of legislative authority, the following principles apply:
If the law has specified the degree of guilt required for violation of the regulations, the matter is clear. For example, the Road Traffic Act addresses both violations of rules contained in the law itself and of rules granted under its authority, and in both cases, it suffices with negligence.
If the law does not have such a provision, the decision must be made based on an interpretation of each individual regulation.
A specific question arises when the penalty threat is found in the Penal Code itself, while the detailed rules regarding what is punishable are found in special legislation or regulations:
In cases where the Penal Code contains a description of the punishable act even though it refers to other laws and regulations, Section 40 applies.
In cases where the Penal Code only contains a generally worded penalty threat, substantial reasons advocate applying the same principles as if the penalty threat had been included in the specific enabling law, i.e., determining the guilt requirement based on a specific interpretation of the relevant law and regulations.
Conclusion
The significance of the degree of guilt in criminal law can hardly be overstated. The main rule is that intent is required when violating the provisions of the Penal Code, while negligence is only punishable when it is expressly determined or unambiguously assumed. In omission offenses, the rule is reversed.
In special legislation, the guilt requirement is often determined by considerations of effectiveness: What degree of guilt is required for the criminal provision to achieve its purpose? Modern legislation, however, generally contains explicit provisions on the degree of guilt, creating greater predictability.
Understanding these principles is crucial for both defendants, defenders, prosecutors, and courts in assessing whether an act is punishable or not.
