Delimitation of Unbeatable Fear in Facing the State of Necessity

*Rodrigo Andrés Guerra Espinosa*

### **Abstract**

This chapter focuses on the study of the limits of unbeatable fear in the state of necessity. Unbeatable fear remains one of the most complex exemptions to interpret, and it stands as a relevant issue both around sacrifice of persons and in cases of violence against women in Chile. Hence, our objective is not a mere analysis of unbeatable fear but rather its delimitation with respect to the state of necessity. The problem has its origin in specifying whether some of the requirements of unbeatable fear are part of the state of necessity. Therefore, the treatment of the nature of this kind of fear, as we have stated, is not peaceful in doctrine and creates insecurity in its interpretation. Therefore, the study of unbeatable fear deserves attention since it entails the analysis of fundamental concepts of the criminal law theory.

**Keywords:** fear, necessity defense, posttraumatic stress disorder, learned helplessness, lesser evil principle

#### **1. Introduction**

This chapter focuses on the study of the limits of unbeatable insurmountable fear in the state of necessity [1]. This problem is observed in the case of Karina Sepúlveda, RUC N° 1101060685-5, of June 21, 2013, before the Sixth Oral Criminal Court of Puente Alto. The Puente Alto Court determined that Karina's behavior conformed to a decision of the state of necessity of art. 10, N°11. Although, in the first ruling, the court accepted that a possible mental disturbance of Karina (learned helplessness) [2] explains the content of the subsidiarity clause of the state of necessity; the court dismissed it in its second ruling. Karina deliberately made the decision to kill her abuser in order to face the imminent danger she was in, without suffering a disturbance of learned helplessness due to insurmountable fear, according to the judgment of the Sixth Oral Criminal Court of Puente Alto, RUC No. 1101060685-5, June 21, 2013. Hence, our objective is not a mere analysis of unbeatable fear, but rather its delimitation with respect to the state of necessity.

The treatment of unbeatable fear is necessary, especially if we consider that, except for some specialized comments on the subject [3], our doctrine has not performed an analysis of fear with the same intensity as other criminal exemptions. For the same reason, the state of necessity will be treated from the following conceptualization: "the state of necessity is a conflict of interest of adjustable inevitability where the absence of moderation implies its full preponderance. Therefore, the distinction of the effects depends on a weighting of interests that has the essential core of human dignity as a limitation" [4]. This, to delimit the fear of this last exemption.

The question thus arises as to what the nature fear is and what its requirements are. A question that does not allow a single answer because it will depend on the meaning of such a fear. If we focus our attention on dogmatics, we can observe that there are some positions that only include a justifying effect in art. 10, N° 11, displacing the exculpatory effect from the state of necessity to the insurmountable fear. Well, they hold that art. 10, N° 11 includes two forms of state of necessity: the defensive and aggressive state of necessity [5]. This position bases its arguments in that the fourth circumstance of art. 10, N° 11 only indicates that unenforceability excludes the possibility of requiring other conduct, is predominantly personal, and that neither the subsidiarity nor the weighting of evils have space in the exculpatory state of necessity [6]. Hence, the insurmountable fear is a space that would admit these hypotheses of inexplicability. Others point out that the functional equivalent closest to the exculpatory state of necessity of art. 10, N° 11 is found in the insurmountable fear of art. 10, N° 9 [3], because it is part of the *vis compulsiva*, that is, unrelated to a ground for innocence.

Accordingly, it is considered that, regardless of the field of intersection between insurmountable fear and the state of necessity, the overlap is not complete [5]. Thus, it could be explained why irresistible mental force or unbeatable fear, even if we are not in the presence of an objectively present or imminent danger, could exempt liability outside the limits of the state of necessity [5]. The problem described also has its origin in specifying whether some of the requirements of unbeatable fear are part of the state of necessity. Hence, the treatment of the nature of it, as we have stated, is not peaceful in doctrine and creates insecurity in its interpretation. Therefore, the study of it deserves attention since it entails the analysis of fundamental concepts of the general part and sentences that allow to redefine the limits of this exemption in attention to the extensive field of application of art. 10, N° 11, which specifies the demands of subsidiarity and proportionality [7].

In this line, the position presented by Juan Domingo Acosta in the processing of Law 20.480 is inserted as proof of the importance of differentiating fear from the state of necessity. Acosta exposed a series of arguments that common sense judges as characteristic of the insurmountable fear, to later show the differences with the state of necessity. The first is that work began on some modifications regarding art. 10, N° 9 of the Criminal Code in the Bill contained in bulletin N° 5308-18, of September 5, 2007, which sought to replace the phrase "or driven by an insurmountable fear" with the phrase "under the threat of suffering a serious and imminent evil," and move the "insurmountable fear" to No. 10 of art. 10. This proposal was intended to incorporate, in No. 9, the requirement that whoever acts, violated by an irresistible force, does so under the threat of suffering a serious and imminent evil.

It was thus decided to incorporate this third requirement (under the threat of suffering a serious and imminent evil) in art. 10, N° 9, to establish what the doctrine understood as the exculpatory state of necessity, as stated in the Report of August 6, 2008, of the Constitution, Legislation and Justice Committee of the Chamber. Despite the incorporation of the third requirement in art. 10, N° 9, the Constitution, Legislation, Justice Committee and Regulations of the Senate decided to eliminate it because it constituted a repetition of what was already contemplated in N° 9 of art. 10, as indicated in its second Report of October 13, 2009. In this second report, Acosta emphasized that, although it is convenient to include a rule of exculpation for a state of necessity, the wording of art. 10, N° 9 did not seem appropriate. And the reason for this is that, after the current wording of art. 10, N° 9, the intention was "to conceive an external factor that acts on the will of the subject, such as force or fear, to the point of influencing the subject in an irresistible or insurmountable way to perform a certain conduct, i.e., to the point that another way of proceeding is not required of the subject."

#### *Delimitation of Unbeatable Fear in Facing the State of Necessity DOI: http://dx.doi.org/10.5772/intechopen.93479*

This interpretation of Acosta undoubtedly implies points of divergence in the Chilean doctrine that, around the nature of fear, can be systematized in three theses. The first thesis establishes that insurmountable fear is an exculpatory state of necessity because it encompasses hypotheses of unenforceability that cannot be contemplated in a state of necessity containing a subsidiarity clause [8]. The second is that insurmountable fear represents a simile of irresistible force. Irresistible force, in which both the *vis absoluta* and *compulsiva* converge in attention to the formulation of the French, Dutch, and Belgian models [9]. Finally, the third maintains that insurmountable fear explains situations of excess in the state of necessity due to the presence of an emotional disturbance. Therefore, how do we know if insurmountable fear is autonomous or functionally equivalent to the state of necessity? It is therefore an issue still under discussion that makes it necessary to redefine the contours of fear. Therefore, our main objective is to determine if insurmountable fear is an autonomous figure and then analyze its limits and scope against the state of necessity. Our conjecture is that insurmountable fear presents particularities that do not respond to the state of necessity and only denote the existence of a dangerous situation in common [10]. Therefore, in the next section, we will discuss some considerations about insurmountable fear that are necessary for the understanding of its meaning.

We will divide the exhibition into two parts. The first part will focus on the theoretical foundations and the state of the art on which our proposal is based, in order to warn of the problem of differentiation of insurmountable fear before the state of necessity, and the second part will focus on the bibliographic discussion around the problem. Finally, this second part proposes how to solve the problem and what is achieved by finding an answer.

### **2. Insurmountable fear in Chilean and comparative doctrine**

When we talk about insurmountable fear, there is consensus in Chilean doctrine to consider it a ground for exculpation [11]. In general terms, it is understood as the emotional disturbance that is a consequence or effect of a serious present or imminent evil which, without excluding the agent's volition, exempts liability. The concept of volition (*willentlich*) implies for us an act of minimum basic freedom, consisting of acting with a minimum alternative (to act or stop acting, to leave inactivity or remain in it). Hence, it is declared that not all coercion is part of the insurmountable fear, and it is even indicated that certain professionals must tolerate insurmountable fears in risky activities [12]. Thus, it is frequently related to the intimidation or threat that certain situations generate. Situations of fear in which insuperability points to external or internal factors affect the agent's conduct. Well, either by affirming that fear is a disturbance that explains excesses in self-defense, or by rightly affirming that it is an analogous form of necessity, a good part of the Chilean doctrine held that, before the state of necessity of art. 10, N° 11, an exculpatory state of necessity was not necessary because the disposition of insurmountable fear was more than enough for these purposes. Likewise, even in the first years of the Code, some authors interpreted insurmountable fear from the logic of the state of necessity, referring to the vagueness and indeterminacy of the term fear in order to accept the state of necessity cases impossible to contemplate in art. 10, N° 7.

But one must not lose sight of the fact that incorporating the exculpatory state of necessity through insurmountable fear makes it difficult to define the nature of both exemptions. Therefore, before art. 10, N° 11, the advisability of incorporating or modifying some of the existing provisions in the Code is discussed to give rise to a broad state of necessity, which would admit new hypotheses of unenforceability.

Thus, it is essential to study the scope and effects of insurmountable fear, because it is unreasonable that it fulfills the same function of the state of necessity. And the argument is that a functional equivalence of both exemptions produces an affectation of the contradiction principle. Well, although there are common elements between insurmountable fear and the state of necessity, the function of fear is, from the dogmatic point of view, independent of the state of necessity. This is why the delimitation of these exemptions, especially in view of the disadvantages of substantiating the state of necessity in an emotional disturbance that explains the selection of the least harmful means [13].

This is a complex but necessary problem that, in the legal Spanish model, translates into three dogmatic positions. The first argues that fear is a mental disturbance that affects a situation of danger. In this context, if the fear that a person suffers is "of pathological origin caused by the schizophrenia he or she suffers […] fear, as such, cannot be taken into account. Therefore, if the fear exemption cannot be applied, it will be necessary to resort to transient mental disorder" [14]. The second indicates that insurmountable fear is an exculpatory state of necessity. Those who adopt it, as we have seen in the Chilean model, argue that the exculpatory state of necessity, not covered in the justifying state of necessity of art. 20, N° 5 of the Spanish Criminal Code, is in the insurmountable fear of art. 20, N° 6 [15]. Faced with this issue, a third tendency has led to observe, in the insurmountable fear, a mixed nature in some of the Spanish Supreme Court judgments, which, in some cases, confers particular characteristics of a ground for unenforceability and, in other characteristics, a ground for indictment [16].

In this way, an interpretative line of insurmountable fear about the presence or absence of a disturbance and its particularities in situations of necessity is outlined in the Spanish model. In the German legal model, on the other hand, express mention is made of fear in cases of excessive self-defense (§ 33 German Criminal Code). If the agent exceeds the limits of self-defense because of confusion, dread, or fear, he or she will not be punished. This excess in the legitimate self-defense of fear is classified, according to the dominant doctrine—despite its regulation between the grounds for justification of § 32 (legitimate self-defense) and that of § 34 (state of necessity) German Criminal Code—as a ground for exculpation. Fear that requires exceeding the limits of self-defense through an *asthenic outburst.* Hence, non-asthenic outbursts, typical of anger, rage, indignation, or revenge, are not part of this defense. According to the dominant doctrine, fear also comes into consideration when the limits of self-defense are *consciously* violated [17]. However, the applicability of § 33 is denied when the author has been involved in a violent dispute. However, contrary to this interpretation, it is noted that only § 35 (exculpatory state of necessity) has excluded exculpation in case the agent causes the danger (§ 35.1 2), while that limitation would not exist in § 33 [18].

In summary, insurmountable fear seems to require the presence of an asthenic outburst that explains the excess in cases of self-defense. In this sense, in the state of necessity, it seems to us that the idea "that it is typical of man to have an irresistible tendency to save himself, literally, at any price, in the face of the danger of his own extinction" [19]. However, this does not imply rejecting the idea that, in some cases, there may be a mental disturbance that explains the excess in cases of necessity [20]. From this, one might think that fear would have a psychological substrate that would be incompatible with the requirements of the state of necessity. In this sense, some authors indicate that a purely psychological position of the unenforceability that only contemplates the basis of impunity in the author's exceptional psychological situation is not held, in a way that makes it impossible to behave according to the rule [20]. The very objectifying wording of precepts such as § 35 German Criminal Code speaks against it. Therefore, several authors observe difficulties in its

#### *Delimitation of Unbeatable Fear in Facing the State of Necessity DOI: http://dx.doi.org/10.5772/intechopen.93479*

application in cases of necessity. And, for the same reason, its notion of culpability transforms, acting differently in the sole criterion of imposing a criminal sanction. In contrast, another area of the doctrine maintains that it is possible to apply § 33 by analogy in the justifying state of necessity (§ 34 German Criminal Code), in the defensive state of necessity (§ 228 of the German Civil Code), or in the case of provisional detention of § 127 (German Code of Criminal Procedure) [21]. However, this requires, in fear, a factual situation similar to that set forth in § 34, § 228, and § 127, and an indetermination—not planned—in the regulation [22].

Although, we cannot ignore that § 33 has a hypothesis that restricts fear solely to situations of excessive self-defense [23], the Chilean legal system does not follow this trend. Well, insurmountable fear is a figure that art. 10, N° 9 does not restrict to excesses in legitimate self-defense. However, this problem of analogical application of fear in the state of necessity is rather dogmatic in the German model because it has not had any repercussions (unlike the Chilean system) on jurisprudence [24].
