Affinity (from the Latin. Affectus - passion, emotional excitement); state of affinity ; physiological effect - in criminal law means a special emotional state of a person , representing an extremely strong short-term emotional arousal, an outburst of such emotions as fear , anger , rage , despair , rapidly flowing and characterized by suddenness of occurrence, short duration of flow, significant nature of changes in consciousness , violation of volitional control actions [1] .
Content
Types of affect
Affect can be physiological and pathological. With physiological affect, the resulting state is an intense emotion that dominates the human mind, reduces its control of their actions, is characterized by a narrowing of consciousness , a certain inhibition of intellectual activity. However, this does not lead to a deep stupefaction, self-control is maintained and therefore physiological affect can reduce, but does not exclude responsibility.
Pathological affect is characterized by complete stupefaction and uncontrolled impulsive action. It is a circumstance precluding responsibility .
The value of affect in criminal law
Physiological affect is a mitigating criminal responsibility , provided that it is a reaction to the unlawful or immoral behavior of the victim, which can be one-time or systematic; in the latter case we are talking about the presence of a long-term traumatic situation [2] .
In legal literature, it is emphasized that the situation of violence, insults or other similar actions on the part of the victim should “exist in reality, and not in the subject’s imagination” [3] , but the same situation can be reflected in the consciousness of the subject in a completely different way depending on features of his personality, mental state - all that preceded its emergence. Therefore, the strength and depth of the affective flare are not necessarily directly proportional to the objective strength of the stimulus (insult, violence, or an attempt to commit it). This may explain the apparent, from an ordinary point of view, the paradox and inadequacy of some affective reactions.
The state of physiological affect is taken into account when constructing compositions with mitigating circumstances [4] , as well as being included in the list of circumstances mitigating punishment [5] .
Allocate also usual and cumulative affect. The usual affect arises in connection with some kind of direct influence on a person. Cumulative (“accumulative”) comes not as a result of direct strong influence, but as a result of accumulation of relatively weak influences, each of which separately could not cause a state of affect.
The presence of signs of physiological affect is the basis for the appointment of a forensic psychological examination, which establishes the presence or absence of affect [6] . To distinguish between physiological and pathological affect, a complex psychological and psychiatric examination can be appointed [7] .
Quite often, investigative and judicial authorities make mistakes related to the establishment of affect: for example, according to the statistics of the judicial authorities of Russia, only in 26.2% of cases, the presence of affect was correctly established at the stage of preliminary investigation; in 62.2% of cases, the wrong qualification of the act was corrected by the court during sentencing; in 11.6% of cases, the error was corrected only when the case was reviewed by a higher court instance [8] .
It should also be borne in mind that the reaction to the psycho-traumatic situation is individual for each person, and that it is not always possible to speak of the presence of affect in the event of an act in response to the psycho-traumatic situation [9] .
Physiology
Pathological affect
Pathological affect so captures a person that he loses the ability to rationally think and control his actions - all his activities become directed towards an objective given emotionally . In this state, which cannot last longer than a few seconds, there is a sharp mobilization of the body’s resources, as a result of which a person may demonstrate an abnormal strength and reaction for him, however, after a short time, the body’s resources are exhausted, which often leads to loss of consciousness. A person who has experienced a state of pathological affect does not remember anything that happened to him at that moment. After this episode, his health often deteriorates sharply, and chronic diseases become more acute.
Physiological affect
Literature
- Balabanova, Lyubov Matveevna . Judicial pathopsychology (issues of determining norms and deviations) . - Donetsk : Stalker , 1998 . - 432 s. - 20 000 copies - ISBN 966-596-104-7 .
- Legal Encyclopedic Dictionary / Ch. ed. A. Ya. Sukharev; Edited .: M.M. Boguslavsky et al. - 2nd ed., Add. - M .: Owls. Encyclopedia, 1987. - 528 p.
Notes
- ↑ Criminal law of Russia. Practical course / Under total. ed. A.I. Bastrykina; under the scientific ed. A.V. Naumova. M., 2007. p. 96.
- ↑ Criminal law of Russia. Practical course / Under total. ed. A.I. Bastrykina; under the scientific ed. A.V. Naumova. M., 2007. p. 97.
- ↑ Run away, Edward Filippovich . Intentional killings and fight against them (Criminal law and criminological research) / edited by V.V. Trufanova. - Voronezh : Voronezh State University , 1965. - 205 p. - 4000 copies
- ↑ Articles 107, 113 of the Criminal Code of the Russian Federation
- ↑ Clause “h” of Part 1 of Article 61 of the Criminal Code of the Russian Federation
- ↑ Enikeev M. I. Forensic psychological examination in criminal proceedings // Legal psychology. - 2009. - № 1.
- ↑ Esakov G. A., Rarog A. I., Chuchaev A. I. Handbook of a judge in criminal cases / Ed. ed. A.I. Rarog. - M .: "Velbi", "Prospectus", 2007.
- ↑ Gasanov Ya. O. Murder in the heat of passion: actual problems and features of the norm // Lawyer practice. - 2006. - № 3.
- ↑ R. Tukhbatullin. The concept of affect as a sign of crimes under Art. Art. 107, 113 of the Criminal Code of the Russian Federation // Russian investigator. - 2005. - № 7.
Links
- Affect // Encyclopedic dictionary of Brockhaus and Efron : in 86 tons (82 tons and 4 extra). - SPb. , 1890-1907.