Excerpt
Abstract
Though it needs statically documented data to conclude so, the practice demonstrates bodily injury crime is one of the mostly and frequently committed crimes. Nonetheless, there is no common worldwide standard to define what constitutes bodily injury crime and to classify bodily injury crime, particularly to grave bodily injury crime and common willful injury crime.
Ethiopian criminal code of 2004 covers bodily injury crime in its chapter II of book V – crimes against person and health. It is verbatim copy of chapter 2 of book V of Ethiopian penal code of 1957. The technique in which act of bodily injury is criminalized in Ethiopian criminal law has some unique characteristics.
These, among other, bodily injury crime is considered as only act that cause actual physical injury while else jurisdictions’ experience evidences psychological injury could also be considered as bodily injury crime.
Besides, Ethiopian criminal law, unlike other jurisdictions, has shortcoming of sufficiently defining injury that constitute grave willful injury crime and also fails to give illustrations of grave willful injury crime for clarity. This shortcoming heads for arbitrary and discriminatory applications of willful injury crime and argument for and against the criteria of designating grave willful injury crime.
The first and foremost argument that causes arbitrary and discriminatory application of grave willful injury crime in Ethiopia, particularly in Oromia Regional State (ORS), is permanency rule argument. Pursuant to this argument, injury to be grave willful injury crime, it must be, and only, injury that caused permanent health complication.
In ORS, this rule is used as the only yardstick to determine whether bodily injury crime is grave willful injury crime or common willful injury crime. Nonetheless, close scrutinizing of the law reveals injury that falls in the ambit of grave willful injury crime is not only injury that causes permanent health difficulty. Moreover, appraising federal cassation division’s jurisprudence also affirms that permanent health complication is not the only criterion to determine whether an injury constitutes grave willful injury crime but it is only one of the criteria.
Thus, the practice in ORS is in contradiction with legislative intent laying behind grave willful injury crime, and also federal cassation division’s jurisprudence on grave willful injury crime. Consequently, the writer argues that designing the permanency rule as the sole rule to determine whether an injury is grave willful injury crime or common willful injury crime is speciously constructed rule.
Key words: Bodily Injury Crime, Grave Willful Injury Crime, ILQSO, Oromia Regional State, Permanency Rule
Introduction
Act of bodily injury is commonly understood as crime against physical integrity and human dignity. Nonetheless, assessing different jurisdictions’ experiences reveals, though they have some criteria in common, they employ different standard and criteria to define what constitute bodily injury crime and to classify bodily injury crimes, particularly into grave bodily injury crime and other types of bodily injury crimes.
Ethiopian criminal code of 2004 covers crime of bodily injury in its chapter II of book V under a caption ‘crimes against person and health’. It is verbatim copy of chapter 2 of book V of Ethiopian penal code of 1957. Though, even closing the eyes to historical glimpse, since 1957 inflicting any kind of bodily injury is crime against person and health, reviewing practices point out that there is no well established jurisprudence to define and to classify bodily injury crimes into grave willful injury crime and other kind of bodily injury crimes.
Particularly, there is fuming argument over injury that constitutes grave willful injury crime and common willful injury crime, and on the rule that serves to designate grave willful injury crime. One of those arguments is permanency rule argument that invoked to determine whether an injury constitutes grave willful injury crime or common willful injury crime. Pursuant to this rule, an injury is considered as grave willful injury crime if and only if it occasioned permanent health problem.
Assessing the practice in ORS reveals this rule is serving as the sole criterion to determine whether an injury is grave willful injury crime or common willful injury crime or other types of crimes against person and health.
Nonetheless, appraising this practice from Ethiopian criminal code of 2004 and federal Supreme Court cassation division’s jurisprudence perspectives, it is not the one and only rule to categorized bodily injury crimes into grave willful injury crime and common willful injury crime.
To examine and demonstrate that permanency rule is not the one and only criterion to determine an injury is grave willful injury crime or common willful injury crime, this tract is outlined into seven sections. Section one purports to discuss and conceptualize the concept of injury. Moreover, it concludes that injury could be divided into real and verbal injury; and body and property injury; and bodily injury, one of real injuries, is physical damage to person’s body and characterized by tearing, cutting, piercing or breaking of tissue.
Section two tries to discuss the concept of grave bodily injury crime, especially the experience of different jurisdictions and concludes that appraising the concept of grave bodily injury crime in different jurisdictions suggests, though they share some element in common, there is variation across different jurisdictions.
Section three appraises grave bodily injury crime under Ethiopian criminal code of 2004 in-depth and it concludes that bodily injury crime embraces only actual physical injury but not psychological injury. Besides, injury that treated as grave willful injury crime is not only injury that causes permanent health complication but also injury that has potential and probability to endanger the life or causes permanent health difficulty hadn’t antiseptic treatment was not intervened, and it also includes some other serious injury. Thus, permanency rule is not the only rule to determine whether bodily injury crime is grave willful injury crime or common willful injury crime.
Section four considers Federal Democratic Republic Of Ethiopian (FDRE) Supreme Court cassation division’s jurisprudence on grave willful injury crime and it concludes that analyzing the jurisprudence of division’s jurisprudence divulges injury that is considered as grave willful injury crime is not only injury that causes permanent health difficulty but also other serious injury.
Section five deals with the practice of grave willful injury crime in ORS and it assess the stance of ILQSO – Oromia Justice Sector Professionals Training and Legal Research Institute. The section argues that the practice of grave willful injury crime in ORS is the replica of the stance of ILQSO. ILQSO’s rule to determine whether an injury is grave willful injury crime is only permanency rule – only injury that causes permanent health complication falls in the realm of grave willful injury crime. Nonetheless, this rule is not in line with the stance of the law.
Section six analyses the practice in ORS from Ethiopian criminal code of 2004 and FDRE Supreme Court cassation division’s jurisprudence perspectives and the last section sets for conclusion and some recommendations.
1. Of injury
Different literatures use the term injury, hurt and wound interchangeably. However, scholars state these terms have almost the same meaning and differences as well1. The dictionary definitions of injury, among others, include injury is infringement of right or actual harm caused to people or property2 ; it is violation of another’s legal right for which law provide a remedy, [. . .] it is divided into real injuries such as wounding and verbal injuries such as slander, [. . .] bodily injury is physical damage to a person’s body3, and it [. . .] as technical legal word, a violation of an other persons right; in this sense the injury cause damage (the loss or harm commonly called an injury)4.
Likewise, in U.S sentencing guidelines, body injury is defined as any significant injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought5. The summation of these definitions suggests injury could be divided into real and verbal injury and bodily and property injury; and bodily injury, one of real injuries, is physical damage to person’s body6 and characterized by tearing, cutting, piercing or breaking of tissue7 and so on.
Clinically, a wound [injury] is produced when there is breach of anatomical continuity of skin or mucous membrane with or without underlying tissue while forensically it is wound when there is damage of any tissue or organ irrespective of breach of continuity of skin or mucous membrane8. This is what is termed as actual body harm; and it rules out psychological bodily injury.
Actual bodily harm is defined as any hurt or injury calculated to interfere with the health or comfort of the victim, [and] such hurt or injury need not be permanent but must, no doubt, be more than merely transient or trifling9.
Thus, the analysis of different literatures point out that bodily injury has different category and named according to its degree of severity. These, among others, include assault, battery, common assault, grave bodily harm, common willful injury, grave willful injury, grievous injury, non grievous injury, serious bodily injury, injury likely to cause death, life endangering injury, life threatening injury, injury hazardous for human life and the lists may go on. Nonetheless, designating category of bodily injury is not as simple as naming its category rather it is a daunting task.
2. Grave Bodily Injury Crime
In all honesty, there is no globally recognized bright line and standard to designate degree of bodily injuries and to define what constitutes grave bodily injury crime. Different jurisdictions, though they use some common standard, consider it differently. Thus, to epitomize, assessing some of them is worthwhile.
To begin with, Model Penal Code of America defines simple assault as (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon; or (c) attempts by physical menace to put another in fear of imminent serious bodily injury while aggravated assault as (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life (felony of the second degree); or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon (felony of the third degree)10.
Taking the stance of model penal code simple assault’s definition of bodily injury takes the concept of bodily injury even beyond actual body harm. This type of injury, especially in common law legal system, is called battery and it involves what might colloquially be known as ‘invasion of personal space’11.
From physical point of view, an injury is a bodily damage or disruption of anatomical integrity of living tissue due to the application of physical forces12 ; and it means any damage to any part of the bodily or bodily harm caused by application of violence13.
As was alluded earlier, above all designating bodily injury crimes into grave bodily injury crime in different jurisdictions, including Ethiopia, is point of hullabaloo. The crux deadlock of designating injury as grave bodily injury crime is that, in one hand, some faction argue that injury to be grave bodily injury crime always should be that causes permanent health difficulty and, on flipside, other faction argue that injury to be grave bodily injury crime always should not be expected to cause permanent health complication rather should be actual injury that was sustained or exist at the time of trial or the potential injury which in fact developed, but could have resulted absent medical intervention14. To illustrate the degree of this hubbub, assessing the definition that was given to grave bodily injury crime in different jurisdiction is worthwhile.
Additionally, the analysis of some jurisdictions’ judicial jurisprudence, some scholars’ work and some jurisdictions’ criminal law experiences demonstrate that to define grave bodily injury crime, they list some of grievous bodily injury crime illustratively and left opens ended. Furthermore, scrutinizing their experience divulges grievous bodily injury crime is not only injury that causes permanent health impediment but also temporary injury with some kind of severe bodily injury.
Thus, to provide evidence for aforesaid hubbub and argument, looking some jurisdictions’ criminal law, judicial jurisprudence and scholars’ work for descriptive purpose is imperative. To begin with, Indian penal code of 186015 and Penal code of Sri Lanka16 defines grievous bodily injury crime, similarly in a way it seems one is copied from the other, when they read as, Emasculation, permanent privation or impairment of the sight of either eye, permanent privation or impairment of hearing of either ear, privation of any member or joint, destruction of permanent impairment of the powers of any member or joint, permanent disfiguration of head or face, cut or fracture of bone, cartilage or tooth or dislocation or subluxations of bone, joint or tooth, any injury which endangers life or in consequence of which an operation involving the opening of the thoracic, abdominal or cranial cavity is performed, any injury which causes the sufferer to be in severe bodily pain or unable to follow his ordinary pursuits, for a period of twenty days either because of the injury or any operation necessitated by the injury.
Other also defines grievous bodily harm17 as’ Any bodily injury of such a nature that if left untreated, would endanger or be likely to endanger life or cause or likely to cause permanent injury to health [. . .]. Montana criminal code of 197318 defines grievous bodily harm as, Bodily injury which creates substantial risk of death, or which causes serious permanent disfigurement or protracted loss or impairment of the function or process of bodily member or organ [. . .]. Great Soviet19 and Russian Federation Of 199620 considered grave bodily injury as, [Injuries are] grave when they are dangerous to life at the moment of infliction, regardless of the consequences, or result in loss of sight, of hearing, or of any organ, in the loss by an organ of its functions, in mental illness or any other impairment of health, joined with persistent loss of at least one-third of the capacity to work, or in termination of pregnancy or permanent disfigurement of the face.
Likewise other also defines grievous bodily harm as,
(a) the loss of a distinct part or an organ of the body; or (b) serious disfigurement; or (c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health; whether or not treatment is or could have been available21.
Again analyzing some jurisdictions’ judicial jurisprudence has also its own significance to search out the matter in-depth. Thus, let assess some of them herein below.
In people v. Johnson22 case the court to explain grievous bodily injury held that, ‘it is common knowledge that a bone fracture is not merely a transitory bodily distress, but a severe and protracted injury which causes significant pain and requires considerable time to heal’.
In reinforcing this case’s holding, some researchers have found that the health-giving processes of fractured bone, in children the fracture may be disappeared in four to twelve months; in adolescents about twelve months; in adults eights to thirty six months; and in elderly people fracture may never be disappeared23.
In People v. Caudillo24 case the court held that, [. . . the] finding of permanent, prolonged, or protracted disfigurement, impairment, or loss of bodily functions was not necessary for defendant to be subject to enhancement for inflicting great bodily injury, [. . .].
In martin v. state25 case, it was held that, The phrase serious bodily injury is quiet readily understood by average layman to mean some injury short of death, and similarly in comer v. state case the court held that the phrase serious bodily injury refers to something short of a fatal injury or mortal wound.
Nonetheless, the holding held in these cases is half of the definition of serious bodily injury crime. This is because it basis only on a single skeleton of serious bodily injury definitions – bodily injury which creates substantial risk of death. Thus, gulping down of this holding of these cases as it is may be toxic. This type of injury is only one part of serious bodily injuries but not the only one. This kind of injury is sometime termed as a life threatening injury.
In United States v. Taylor26 case, a life threatening injury is defined as, An injury involving a substantial risk of death; loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent; or an obvious disfigurement that is likely to be permanent.
Furthermore, in some cases the court unequivocally indicates that serious bodily injury doesn’t mean only injurious that causes permanent health problem. In State v. Laughlin, as an instance, the court held that grievous bodily injury need not be of a permanent character and that the word ‘grievous’ meant ‘atrocious, aggravated, harmful, painful, hard to bear and serious in nature’27.
[...]
1 Abdul Barek and Syed Mohammed Tanjilul Haque, Medico-logical Aspect Of Hurt, Injury and Wound, AKMMC J, Vol.4, No.2, 2013, P.37
2 Oxford Dictionary of Law, 5th Edition, Pp-252
3 Black’s Law Dictionary, 9th Edition Pp-856
4 Oran’s Dictionary of The Law, 3rd Edition, Pp -240
5 U.S Sentencing Guidelines Manual, Section 2B1.1 cited in Francis X. Shen, Mind, Body and The Criminal Law, Minnesota Law Review, [Vol.97:2036], 2013, P. 2047
6 Black’s law dictionary, supra note 4, p. 856
7 The American Heritage Medical Dictionary, 2007 Cited In Kuwanpura R, The Mechanics Of Injury Production and Wounding Forces In Judicial Context, International Journal Of Medical Toxicology And Forensic Medicine, Vol. 5, No.2, 2015, P.78
8 Barek and Tanjilul Haque, supra note 2, p.37
9 Jonathan Herring, Criminal Law, Palgrave Macmillan, 5th Edition, 2008, P.136
10 Model Penal Code [Of America], Section 211.1
11 Herring, supra note 10, p.134
12 Kuwanpura, supra note 8, P.79
13 Barek and Mohammed Tanjilul Haque, supra note 2, P.37
14 Janet L. Freeman, State V. Goodwin: Defining Grave Body Injury In Aggravated Assault and Knapping Cases, Montana Law Review, Vol. 48, 1987, P.183
15 Y. Srinivasa Rao, The Theory Of ‘Hurt’ and ‘Grievous Hurt’ < http://articleonlaw.wordpress.com/2015/03/27/the-theory -of-law-hurt-and-grievous-hurt > last visited on 17/10/2020
16 Senanayake S.M.H.M.K., Where Is The Legal Concept Of “Injuries Likely To Cause Death” Found In Sri Lankan “Medico-Legal Classification Of Injuries”, Sri Lanka Journal of Forensic Medicine, Science and Law- Vol.6 No.2, December 2015 , p. 9
17 Benchbook, grievous body injury, no.14.1, 2019, <http://www.courts.qld.gov.au/-data/assets/pdf-file/0020/86150/sd-bb-140-grievious-bodily -harm.pdf > last visited on 17/10/2020
18 Freeman, supra note 15, P.180
19 The Great Soviet Encyclopedia, 3rd Edition (1970-1979)
20 Article 111(1) of Criminal Code Of Russian Federation Of 1996 reads as intentional infliction of a grave injury, which is hazardous for human life or which has involved the loss of sight, speech, hearing, or any organ or the loss of the organ's functions, or which has expressed itself in the indelible disfiguring of a human face, and also infliction of other harm which is dangerous to human life or which has involved an injury to a person's health, joined with considerable permanent loss of general ability to work by not less than one third or by the full loss of an occupational capacity for work, which capacity was evident to the guilty person, or which has involved the interruption of pregnancy, mental derangement, or the victim's falling ill to drug addiction or toxicosis.
21 < hptt://D:/Charges/My%20file/Body%20injury/injury/sd-bb-140-grievous-bodily-harm.pdf > last visited on 19/10/2020
22 [California State], People v. Johnson (1980) 104 Cal. App. 3d 598, 609, < https://www.shouselaw.com/gbi.html > last visited on 19/06/2018
23 George I. Swetlow, Medico – Legal Aspects Of The X-Ray In Head Injury Cases, University Of Miami Law Review, Vol. 6, 1952 P.219
24 [California State] People v. Caudillo (1978) 21 Cal.3d 562, < https://www.shouselaw.com/gbi.html > last visited on 19/06/2018
25 Court Of Appeals Of Indiana, Opinion 73A01-1703 –CR – 405, August 30, 2017, P.6, <https://www.google.com/search?ei=jbA0W7ywDsPwULjnhpAI&q=vick+jo+clemons+vs+state+of+indiana&oq=vick+jo+clemons+vs+state+of+indiana&gs_> last visited n 12/1/2018 E.
26 United States v. Taylor, 2009 U.S. App. LEXIS 16394 (4th Cir. N.C. July 24, 2009), < https://definitions.uslegal.com/l/life-threatening-injury > last visited on 19/06/2018
27 Freeman, supra note 15, P.181
- Quote paper
- Fesseha Negash (Author), 2021, The Permanency Rule in the Ethiopian Criminal Code of 2004. Consequences for the Defintion of Grave Willful Injury Crimes, Munich, GRIN Verlag, https://www.grin.com/document/995335
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