d) Duties based on ownership or on responsibility for a source of danger—under
this category fall cases where ownership or responsibility for a source of danger
can give rise to a duty of care. A homeowner, occupant, or landlord can thus be
under a duty of care if due to particular circumstances protected legal interests
are endangered in the spatial sphere of the lodging. For instance, if a house
owner neglects to maintain the heating installation of his property properly,
liability may arise should one of the occupants incur harm due to his failure
to act.
e) Duties based on the creation of a dangerous situation—finally, it seems to be a
generally accepted principle of law that one is under a duty to prevent harm that
might be caused by prior conduct that created a source of risk or danger. For
example, if two construction workers dig a hole and fail to take appropriate
safety measures to avoid that somebody else will fall in and get injured, they
may incur liability for causing bodily harm by omission, provided the required
mens rea can be proven. This last case differs from the aforementioned duties
based on the responsibility for a source of danger. Here, the law requires that an
interest is “rescued” from the imminent danger created by the perpetrator, rather
than imposing a general duty to maintain safety.
7.6 Mens Rea or the Subjective Element
After having discussed the structure of crime and liability for crimes of commission
and omission, it is now time to turn our attention to the subjective requirement of
mens rea. Next to anactus reus, the objective element of a crime, most offenses
require amens rea, the mental or subjective element of a crime. Take for example
the offense definition of manslaughter in article 287 of the Dutch Criminal Code: “a
person who intentionally takes the life of another is guilty of manslaughter.” The
taking of life is the actus reus of the crime, and the required intention as to that
conduct is the necessary mens rea.
Different Subjective Elements The termmens reacovers different subjective
elements in order to distinguish relative degrees of fault, reflecting a difference in
the reproach directed against the defendant. The exactly requiredmens reastandard
may vary from crime to crime, but generally the more serious crimes require the
strictintentionrequirement, while less serious offenses require a less culpable state
of mind likenegligence.
Take for example homicide. Homicide can be committed intentionally or by negligence.
It’s reasonable that someone who really wants the death of the victim is considered more
culpable than someone who causes the death of another by his carelessness.
Accordingly, people can be punished much more severely for intentional crimes
than for negligence crimes.
Regarding the demarcation of the different subjective elements, the continental
civil law systems, such as those of Germany and the Netherlands, distinguish only
7 Criminal Law 135