The Influence of Aggravating or Mitigating Personal Characteristics on the Liability of the Participants

תקציר

Personal characteristics may be relevant to criminal liability in one of two cases. Firstly, in offences which can only be committed by an actor with a special status (offences of delicta propria): for example, bigamy, committed by a "married person"; perjury which only a "witness" can commit; corruption by a "public servant". Secondly, where the personal characteristic either aggravates or mitigates the basic offence. Thus, in Israeli law, parricide -killing one's parents-defined in sec. 300(a); of the Penal Law, 1977, is an aggravated form of manslaughter; while infanticide-where a mother kills her newborn baby is, according to sec. 303 (a) of the Law, a mitigated form of either murder or manslaughter. Similarly, stealing by an employee, according to sec. 391 of the Penal Law, is an aggravated form of theft; and stealing by public servant, according to sec. 390, is an even more aggravated form of stealing by employee. In this paper I shall limit myself to the second set of characteristics. My aim is to examine the solution required under the law of complicity in instances where the personal characteristic, which either aggravates or mitigates the offence, obtains only in one of the participants. Will the secondary party, who either instigated or aided a son to kill his father, be held liable as an accomplice to the aggravated offence of parricide committed by the son? Will a similar conclusion be applied where the accomplice instigated infanticide? What about an employee who aided another to steal from his employer? And to what offence will the principal offender in that case be held liable?