Error type derived from anomalies or alterations Psychic: a difficult challenge to the theory of crime

Abstract

The current continental crime theory, almost without discussion, assumes that thefact that the author suffers from insanity or mental disorders affects his mens rea, but not the unlawfulness of the fact, which allows measures like the commitment of authorto a mental hospital. However, the existence of cases in which such disorder saffect prior the actus reus, therefore excluding the existence of the act itself, or the presence of subjective elements of unlawfulness, or causing an unavoidable mistake of fact, poses the major theoretical challenge of how to justify such measures without aconstitutive fact of crime (actus reus). The paper examines critically the various proposals that have been put forward to solve the problem within the system, and shows that none is in a position to do so; therefore, an alternative solution is proposed.