The Principle of Coverage in Criminal Law: Which Elements Must Be Included in the Guilt Assessment?

In criminal law, it is not sufficient that a person has objectively violated a criminal provision and that subjective guilt is present. The subjective guilt (intent or negligence) must also include the objective elements that make the act punishable. This is referred to as the principle of coverage and constitutes a central part of the requirement for guilt in Norwegian criminal law. This article highlights the elements that must be covered by the perpetrator's guilt for criminal liability to be imposed.

The Starting Point of the Principle of Coverage

When the degree of guilt under a criminal provision is intent, it means that the intent must encompass all the elements that make the act a crime or an offense. The intent must, as it is often expressed, cover the entire objective content of the crime in the relevant criminal provision. This starting point is reflected in Section 42 of the Penal Code, which states that if a person, when committing an act, was unaware of circumstances that condition the punishability or increase the criminal liability, these circumstances are not to be attributed to him.

When examining the principle of coverage more closely, it can be practical to distinguish between the consequences of the act and other elements of the crime.

Intent Must Include the Consequences

The intent must first include the consequences mentioned in the criminal provision – a person's death in the case of murder (§ 233), bodily injury in the case of bodily harm (§ 229), or the destruction or damage of an object in the case of vandalism (§ 291). The same applies when the criminal provision is directed at causing danger; the danger must then be intentionally caused.

However, the intent does not need to include the individual steps in the course of events. When the result is what the perpetrator sought, it does not matter if it occurred in a different way than the perpetrator had thought.

Aberratio Ictus (Mistaken Aim)

A special case is what is known as aberratio ictus (mistaken aim). For instance, A sends a box of poisoned chocolates to his rival B, but B gives the chocolates to the child C, who eats them and dies. A intended to kill, and he has killed, but he did not intend to kill C.

In such a case, when the effect that occurred is of the same nature as the intended one, it is most natural to judge the affair as a completed crime. This is akin to when there is a case of mistaken identity, where the perpetrator misidentifies whom they are hitting.

Intent Must Cover the Entire Objective Content of the Crime

The intent must also include the other steps in the description of the punishable act in the criminal provision:

• Punishment for bigamy presupposes knowledge that the former marriage still exists.

• Punishment for theft presupposes that the perpetrator knows the item belongs to someone else.

• Punishment for incest (§§ 197 and 198) presupposes knowledge of the relationship.

• Punishment for usury (§ 295) presupposes that the perpetrator is aware that there is "distress, recklessness, ignorance or dependence" of the other party, and that there is a "noticeable disparity" between performance and counter-performance.

Grounds for Exemption from Punishment and Subjective Excess

The principle in § 42 also applies to circumstances that affect punishability without being mentioned in the individual criminal provision, including grounds for exemption from punishment:

• Anyone who believes they are in a situation of self-defense or necessity cannot be punished for intentional legal violation if the act would have been justified from their perspective.

• The same applies to unwritten grounds for exemption from punishment, e.g., consent or lawful self-help.

Certain criminal provisions do not suffice with the intent covering the objective content of the crime but set certain subjective requirements in addition, particularly there may be a purpose that goes beyond what is objectively required to be realized (so-called "subjective excess").

Incorrect Notions of the Meaning of Legal Expressions

The principle is that the perpetrator should be judged based on their understanding of the factual context. An incorrect understanding of the meaning of the expressions used in the Penal Code does not have the same effect.

For example:

• If a usurer wrongly believes there is not a "noticeable disparity" between performance and counter-performance, it may be due to either a mistake in value on one side (factual error), or a different understanding of the words "noticeable disparity" than the legislator (legal error).

• In the first case, the error is assessed according to § 42; in the latter case, it is a legal error assessed according to § 57, which rarely leads to exemption from punishment.

Knowledge that the act is punishable or illegal does not belong to the intent. This also applies where the relevant criminal provision explicitly requires the act to be "unlawful," "illegal," "unjustified," etc.

Exceptions from the Principle of Coverage: Objective Excess

The rule that the intent must cover each element in the description of the law has certain exceptions, often referred to as "objective excess."

Value and Damage Amount

Such an exception is found in § 42, 4th paragraph: "Misunderstanding regarding the value of an object or the amount to which a damage is to be assessed, is only considered where punishability is conditioned upon it."

Some provisions in the law make the sentencing contingent on the value of the item taken, or the extent of the damage caused by the action. The value of the item or the extent of the damage is not decisive for punishability but only matters for the severity of the penalty. In such cases, it is the objective value that is to be considered, not the value the perpetrator assumed.

It is only the monetary value that does not need to be covered by the intent. Regarding the physical extent of the damage, the usual rule in § 40 applies. The guilty party is not accountable for greater consequences than they anticipated at the time of the action.

Aggravating Consequences (§ 43)

Another important exception category concerns cases where the law prescribes an increased penalty when a punishable act results in an unintentional consequence. The law contains many such provisions, particularly practical is § 228, 2nd paragraph, on bodily offense that results in bodily harm or death.

Purely coincidental consequences do not have aggravating significance under § 43. It requires that the perpetrator "could have foreseen the possibility of such a consequence," or that they "failed to prevent it to the best of their ability after becoming aware of the danger."

This implies:

• It is not the purely objective foreseeability that matters, but whether the perpetrator could have foreseen the possibility.

• It does not require negligence regarding the consequence. The law formulates it as "could have," not "should have" foreseen.

• The perpetrator can be convicted of bodily offense with fatal outcome even if there is no basis for a conviction for negligent manslaughter.

Even if the consequence was not unforeseeable, liability can be excluded if it occurred in a completely unforeseeable manner that is unrelated to the dangerousness of the act.

Objective Conditions for Punishability

In some cases, there are certain conditions for punishability that do not need to be covered by the intent. These can be referred to as purely objective conditions for punishability.

Examples include:

• In § 195 (sexual intercourse with a child under 14 years), the law states that error regarding age does not exempt from criminal liability. Here even the most excusable error regarding age does not exempt from punishment.

• In cases of defamation, the untruth can in certain situations be a purely objective condition for punishability. Even if the defamer was in well-founded good faith regarding the truth, they are subject to liability. Only proof of objective truth can exempt them.

Misconception about Own Accountability

The principle in §§ 40 and 42 applies to circumstances related to the act, not circumstances crucial to the perpetrator's criminal accountability:

• If a boy mistakenly believes he has not turned 15, he is still criminally liable.

• Similarly, if it should occur against all odds that a person considers themselves insane.

Negligence Liability

If intent is lacking for one or more elements of the crime, there may be a question of negligence punishment. This presupposes first that the law declares the act punishable also in negligent form, and second that there is negligence regarding the element(s) for which intent is missing.

As § 42, 2nd paragraph states: "Where ignorance itself can be attributed as negligent, in cases where negligence is punishable, the penalty provided for negligence is applied."

Examples:

• A person destroys someone else's property believing it to be their own. If the error can be attributed to them as negligence, they can be punished for negligent destruction of another's property, but only if the damage is of a certain seriousness.

• Someone who takes someone else's property believing it to be their own cannot be punished even if the negligence is gross, as neither the provision on theft nor the provision on unlawful possession infringement addresses negligence.

If neither intent nor negligence is present regarding an individual element, then negligence punishment cannot be applied either.

Conclusion

The principle of coverage is a fundamental part of Norwegian criminal law and ensures that individuals are only punished for acts they have demonstrated sufficient guilt in relation to. The main rule is that guilt must include all the objective elements that make the act punishable. However, there are several important exceptions, especially concerning aggravating consequences, value assessments, and certain objective conditions for punishability. These exceptions are justified by legal technical concerns or particular protection needs.

The understanding of the principle of coverage and its exceptions is crucial for both the prosecution, defense, and courts in the assessment of whether a person can be held criminally responsible for their actions.