Is it Right to Disregard 'Motive' in Criminal Law?

The criminal law is rooted in socially-constructed morality; Lord Devlin once characterised criminal offence as 'sins with legal definitions'. Crimes and criminals are routinely referred to as 'evil', and it seems intuitive to regard the criminal law as a means by which evil deeds can be discouraged and those who perpetrate them punished. It may seem anomalous therefore that motive should be divorced from the substantive criminal law. Yet, in the Anglo-American model, that motive plays no official role in the substantive criminal law has been described as 'as firmly established ... as any rule can be'. It is no accident that the word 'motive', absent in large part from the criminal law, is a staple of cultural representations of the criminal process. It humanises the criminal law, making the connection between the act of the convicted and their wider life story. However, it is this very element that renders consideration of motive a problematic concept. It can and has been argued that the substantive law does not concern itself with judgement of the whole person, but rather punishes the particular conduct that is on trial; Fuller characterised the enterprise as 'subjecting human conduct to the governance of rules'. Thus, a culpable state of mind becomes the 'mens rea', and contemporaneous, instantaneous concepts such as intention and recklessness become its measure. The attribution of liability on the basis of such snapshots is an understandable, even necessary pre-condition for the existence of a coherent and workable criminal law, an attempt to reconcile the twin (arguably often contradictory) duties of the criminal law: that of upholding 'liberal individualism' and 'the social control needs of the state'. However, some groups are vulnerable to injustice under the relative inflexibility that is the corollary of this paradigm. In this paper, I will explore the doctrines of assault and consent, and the impact that adherence to a strictly uniform, doctrinal approach can have on subcultures such as sports-persons and those engaged in other forms of consensual physical violence.