® InfoJur.ccj.ufsc.br

The Concept of Cybercrimes - Is it right to analogize a physical crime to a cybercrime?
by Brett Burney

An Analysis of a Physical World Crime

A crime happens when someone engages in activity (or a non-activity) that is “socially intolerable.”[1] Criminal law is an attempt to prevent the “evil consequences,” or “injurious effects,” or simply the “harm” that is caused by socially intolerable activity.[2] An activity cannot be considered a “crime” unless there is a pre-existing law or statute that specifically defines the criminal conduct and prescribes a punishment.[3]

Definition of “Crime”

Several legal scholars have developed general definitions of a crime. Blackstone in his commentaries offered this suggestion: “A crime or misdemeanor is an act committed or omitted, in violation of a public law either forbidding or commanding it.”[4] Burdick expanded on this and added the element of capacity: “A crime is the voluntary commission or omission, by a person having criminal capacity, of any act, in violation of a public law either prohibiting or commanding it, and which is punishable by the offended government by a judicial proceeding in its own name.”[5] Perkins distills all the definitions down to an easily comprehensible comment:

“Crime is any social harm defined and made punishable by law.”[6]

These definitions encompass the several elements and principles that are recognized as comprising a crime in most Western societies.

Elements of a Crime:

1. Prohibition by Law

First, harmful conduct cannot be considered a crime unless it is specifically prohibited by law.[7] The broad aim of criminal law is to prevent harm to society – but not all harmful conduct is criminal.[8] A legislature must determine if the harmful conduct threatens the safety, morals, and welfare of the public.[9] Only then can they forbid the conduct through legislative means. A person cannot be punished by a government unless it has been proved by an impartial and deliberate process that he has violated a specific law.[10]

2. Physical Act

Next there must be an act – a physical bodily movement.[11] (Throughout this paper, it will be assumed that an “act” encompasses a “non-act,” or an omission to act.) In order for harmful conduct to be criminal, it must consist of something more than a mere bad state of mind.[12] While it is no crime merely to entertain an intent to commit a crime, an attempt to commit it may be criminal; but the reason is that an attempt (or a conspiracy) requires some activity beyond the mere entertainment of the intent.[13] The act is usually required to be “voluntary.”[14] The voluntary act therefore presents an external manifestation of an inward will to act.[15]

3. Mental Aspect

There must be a mental state of mind that is manifested in the physical act.[16] Most crimes require some sort of bad fault (i.e., a bad mind).[17] Today, most statutes that define criminally harmful conduct employ words or phrases indicating some type of bad-mind requirement: knowingly, intentionally, purposely, fraudulently, willfully, and so on.[18] (I note here that there are “strict liability” crimes as well.)

4. Concurrence

The mental state must concur with the act. Put another way, the mental state must actuate the act.[19] It is sometimes assumed that the mental and physical aspects of a crime must exist at the same point in time in order to concur together.[20] However, the better view is that there is concurrence when the defendant’s mental state actuates the physical conduct.[21]

5. Causation

Lastly, this concurrence must cause or produce some type of social harm or “evil consequences.”[22] Causation is the principle that a person’s conduct was the necessary cause of a harmful result.[23] It is this social harm that is socially intolerable, and therefore is discouraged by the creation of legislation and designated punishments.[24]

Conclusion of the Elements

These elements prove that a person cannot be held criminally liable for thinking bad thoughts alone.[25] To be guilty of a crime, a person must do more than just think bad thoughts; a person must be guilty of wrong-“doing.”[26] The act is the “doing”; the harm caused by the act is the “wrong.”[27] The harm is the essence of the crime.[28] It is the “fulcrum between criminal conduct and the punitive sanction.”[29] The “harm” is the reason that we punish those that engage in the acts that might lead to the harm. And because crimes are public wrongs, we describe the harm caused by a crime as “social harm.”[30]

Harm in Crime

“Harm” is a fundamental principle of crime.[31] Eser postulates that it is the “material substance of crime.”[32] In modern day criminal law, the wrong of a crime consists for the most part in the disobedience of a legal command or prohibition.[33] But that specific action can merely be labeled as a substantial element of a crime.[34] “Harm” denotes the fact that the crime, in addition to the mere breach of the law, injured the object which the criminal provision was designed to protect.[35] The notion of harm comprises more than mere formal disobedience of the law.[36] The formal breach of the law has its material substance in the impairment of the interests the law is designed to protect.[37] Thus, in order to prove a crime, it is not sufficient to show the breach of the law, but rather a damage to the enumerated interests of a Code.[38]

A crime is a formal breach of the law; but the essence of harm cannot be seen in this formality.[39] The question then becomes whether harm may consist in the personal immoral wrong of the offender, or, alternatively, in the impairment of some objective right, interest, or external good.[40] The Model Penal Code expresses a purpose of the criminal law to be the forbidding and preventing of conduct “that unjustifiably and unexcusably inflicts or threatens substantial harm to individual and public interests.”[41] It is not the subjective ethical immorality of the offender that is the true substance of criminal harm.[42] Rather, it is the damage done to objective interests and values.[43] The essence of the criminal wrong, i.e., the harm which the law seeks to prevent, must be found in the harmful effects of the crime and not in the moral fault of the perpetrator.[44]

Harmful conduct must effect some type of legal interest before it can be found criminal. It would be inaccurate (and probably unfair) to define legal interests only in terms of the state’s interest in protecting the respective right or institution.[45] An individual’s own rights must be taken into account in the concept of “legal interests.”[46] For example, the theft of another’s property is not only a harm to the government’s interest in preserving and safeguarding property as a social value, it also causes harm to the specific proprietary rights of an individual.[47]

It is important to note that the object of the criminal attack is not always necessarily the interest to be defended.[48] In order for a legal interest to deserve protection, it must be grounded on a broader basis than that of the welfare of a single individual or a particular class; it must have the recognition of society.[49] Society must deem a legal interest valuable enough to safeguard, though it may be of direct benefit to only certain individuals or special groups in the community.[50]

Hall states that harm is “a negation, a disvalue, the lack of [a] natural condition” – it is more than simply physical injury.[51] He continues: “harm must be stated in terms of intangibles such as harms to institutions, public safety, the autonomy of women, reputation and so on. In short, harm signifies the loss of value.”[52] Hall’s statements illustrate that many harms consist not in the change of physical things or conditions produced by the crime, but in the infringement of interests or rights which are only intellectually conceivable.[53] In forgery, for example, the harm is not to the paper on which the falsification was committed, but to the commercial and social community’s interest in being free from instruments which are not genuine.[54] The true end of criminal protection from forgery is the commercial public’s legal interest in the safe exchange of property.[55]

Now to illustrate the above elements of a crime, I parse the common-law crime of burglary.

The Parsing of Burglary

I would like to apply the above criminal elements to a recognized crime. My goal is to discover the harm that the crime of burglary is intended to protect.

1. Burglary Prohibited by Law

First we must discover that burglary is prohibited by law. Under the common law of England, burglary was defined to be the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony.[56] There were six recognized elements of the crime: (1) the breach (breaking), (2) the entry, (3) the dwelling, (4) “of another,” (5) at night, (6) with burglarious intent (intent to commit a felony crime).[57] In most burglary statutes today, these elements have been expanded or discarded so that the modern day offense sometimes bears little resemblance to the common law ancestor.[58] But many states still retain some type of a burglary statute mainly because the offense is so imbedded in the laws and minds of legislatures and citizens.[59] The Model Penal Code attempts to narrow the offense in an effort to bring its coverage back more closely to that of its common law ancestor.[60] Section 221.1 of the Model Penal Code states that “a person is guilty of burglary if he enters a building or occupied structure…with the purpose to commit a crime therein.”[61]

2. The Physical Act of Burglary

a. The Breaking

We must next discover the physical act employed in the crime of burglary. Under common law the physical act would be both the breaking (the breach) and the entering. In order to constitute a breaking at common law, there had to be the creation of a breach or opening; a mere trespass at law was insufficient.[62] Breaking does not require any damage to, or destruction of, the property; while on the other hand more is required than the mere crossing of an imaginary line.[63] While mere trespass alone is insufficient, breaking usually means making an opening in a building by means of trespass.[64]

b. The Entry

Following the breaking there had to be an entry by the offender.[65] An entry was sufficient if any part of the actor’s person intruded, even momentarily, into the structure.[66] An offender putting his hand inside a window while raising it was sufficient.[67] I would like to add an important point here for later examination: If an offender instead used some instrument or tool which protruded into the structure, no entry occurred unless he was simultaneously using the instrument to achieve his felonious purpose.[68] In other words, if a part of the body is inserted into the physical structure, that could be considered an entry whether the purpose of the insertion of the body part was to complete the felonious design or merely to effect a breaking.[69] If a tool or instrument is inserted into the physical structure, it would not be considered an entry, unless the tool was inserted specifically for the purpose of “completing the felony, but not if it was merely to accomplish a breaking.”[70] However, if the instrument is inserted in such a manner to both make a breach and accomplish the completion of a felony, it could constitute both a breaking and an entry.[71]

Lastly, there usually must be a causal connection between the breaking and the entering.[72] It is possible to engage in the breaking and entering separately.[73] A man may cause a breaking on one night and return the next night to enter through the breach he previously created – this would be considered sufficient to constitute both breaking and entering.[74]

3. The Mental Aspect of Burglary; Concurrence

In common law, there was no burglary unless the intrusion was perpetrated with an intent to commit a felony.[75] If the actor, when he was breaking and entering, only intended to commit a simple trespass, he was not guilty of burglary although he in fact committed a felony after entering.[76] It was important that the intent to commit the felony accompanied both the breaking and entering.[77] In other words, the physical act of breaking and entering, and the mental aspect of intending to commit a felony, must concur in order for the crime of burglary to exist. Lastly, the intent must have been to commit the felony within the building that was the object of the breaking and entering.[78]

Many modern statues including the Model Penal Code have diluted the mental aspect of a burglary to an intent to “commit a crime therein.”[79]

4. Causation; The Harm of Burglary

The common law crime of burglary was created to protect from offenses perpetrated against habitation and occupancy.[80] The physical act of breaking and entering could produce damage to an occupancy. And the breaking and entering was the means to the end of committing a felony once inside the habitation.

In order to determine the harm that the crime of burglary is intended to protect against, we must discover the legal interest in inherent in the protection.[81] Because the harm in a crime is usually more than the mere formal breach of the law, harm has a negative meaning.[82] It usually expresses the risk of destruction or the destruction itself of something valuable.[83] In the evolution of a democratic system, we as a society have recognized several legal interests in protecting the family and the property of habitation. Since “harm” indicates that some damage has been done which is the result of some unlawful action, seeking the nature of harm actually means ascertaining the objects which can be harmed.[84] We must examine exactly what is injured by conduct which we believe to result in social harm.[85] When an actor breaks into a structure, damage can be done to privately owned property. When an actor enters a habitation, personal privacy can be compromised. And since an actor involved in the crime of burglary intends to commit a felony once he has broken and entered, several dangers are involved including murder or arson.

The common law did not require that the occupants of a dwelling turn their home into a fortress.[86] It only required that they not leave openings which would “invite” another to enter.[87] The law does not punish one that has been “invited” in any way to enter a dwelling, the law sought only to keep out intruders.[88] In recent years the elements “dwelling of another” and “at nighttime,” along with the commission of a “felony,” have been modified. Modern statues such as the Model Penal Code simply require a “building” or an “occupied structure.”[89] Originally the night was considered the time when honest men might fall prey to criminals.[90] There is no jurisdiction today that requires the act of burglary to happen at night, although the act perpetrated at night might demand a higher degree of the offense.[91] And lastly, we have already discussed that the intention to commit any crime after the breaking and entering might suffice for the mental aspect of burglary.

While the present-day crime of burglary has little in common with it’s common law ancestor, it is still recognized as protecting important legal interests. It is now time to turn to Cyberspace – I will attempt to apply these same elements of the common-law crime of burglary to Cyberspace.