**3. Discussion around the differentiation of fear and the state of necessity**

In conformity with the general description of the doctrinal, legal, and jurisprudential treatment of insurmountable fear and the state of necessity already carried out in the first section of this chapter, now we must define the legal nature of insurmountable fear and delimit it from the state of necessity, considering the introduction of art. 10, N° 11 in the Criminal Code.

It is easier to clear up some questions about the nature of insurmountable fear in the doctrine of the irresistible impulse. This doctrine delimits the degree of intensity that insurmountable fear requires [25, 26]. Today, we cannot doubt that insurmountable fear is marked by the consequences of this doctrine in jurisprudence. According to this tendency, the Court of Appeals of Santiago, against Ana Medina Soto, of September 30, 1969, established that "fear is a distressing disturbance of the mind caused by a threatening danger or evil, real or imaginary; and it is insurmountable when it superimposes itself on the will in such a way that drives it to the realization of actions that, without it, would not have been executed, dominating the will without constituting a ground for non-imputability, but one of non-enforceability of other conduct and which, generically, is classified among those of culpability."

Therefore, many of the problems of this doctrine of impulse pertain to insuperability. That is, around how to determine the degree of disturbance that fear requires. In this field, the "irresistible impulse" makes it possible to define the level of disturbance through a graduation that is collected from the psychology of impulses [27]. The agent can only be governed by regulations in the event that his or her ability to control remains unchanged in the situation he or she faces. From which, methodological consequences derive around the psychology of impulses. On the one hand, that the irresistible impulse be treated from a philosophical model that denies the formulation of the irresistible impulse due to its metaphysical assumptions. This presupposes accepting a classical form of psychoanalysis that is incompatible with phenomenology.

In this line, it is indisputable that criminal law is not psychiatry or philosophy, so the adoption of phenomenology as a tool for graduating the irresistible impulse requires foundation. However, in the history of criminal dogmatics, phenomenology initially appears with the theory of finalist action by Hans Welzel and does so in the hands of phenomenological psychologists [28]. However, there is no pronouncement in the Chilean dogmatic that is decisive in the matter. The specific problems posed by insurmountable fear have been attempted in dogmatics since

the well-known case of Karina Sepúlveda. But as we have already explained in the first part of this chapter, it seems inadmissible that the subsidiarity clause of the state of necessity is at the mercy of an asthenic outburst. If, as conjectured here, it is understood that insurmountable fear is an autonomous exemption from the state of necessity, the irresistible impulse may have a role in it.

This seemed to be the case of the Judgment of the Court of Appeals of San Miguel, Case N° 1966-94, of December 20, 1994. In this case, Raúl Enfraín Ortiz is prosecuted for killing a subject and leaving another seriously injured by hammering his head. A situation occurring while these dangerous subjects slept. The motivation of the agent's action focused on protecting his 11-year-old son from these two armed subjects (seasoned criminals) who, escaping from the police, threatened to kill his son if he tried to report them to the police or flee from the place where they were. The judgment of the Court correctly indicated that, although the medicallegal report "concludes that … the accused would have presented a state of intense emotional alteration … of explosive and primitive features," and a decrease in the imputability would correspond "to the defendant, in the terms of art. 11, N° 1; in relation to article 10, N° 1 of the Criminal Code, the latter is not binding on the judge, the only one in charge of making legal assessments regarding the verifications of the auxiliary sciences of Criminal Law."

The court came to the conviction that "given the serious situation of previous intimidation that affected the defendant—and that included his eleven-year-old son—by two armed subjects who were fleeing from police harassment, one of which (*El Toro de Quilamuta*) was known to be a highly dangerous criminal, his violent reaction against them was determined by a very strong emotional impetus that dominated his will [for] the psychological environment of anguish he was in." The situation of real danger of intimidation above produces a disturbance in the agent that enhances his or her action on dangerous subjects. The court decided to exempt the defendant from liability, considering his sociocultural and psychological background. Likewise, it considered that the agent's behavior was within the parameters of unenforceability of art. 10, N° 9. The problem of insurmountable fear —raised by the enunciated situations of danger (cases of Karina Sepúlveda and Raúl Enfraín Ortiz) —becomes a question of whether there are other factors of unenforceability, such as, for example, serious mental disturbances, but of less intensity to those of a ground for innocence, which give rise to the action of the necessity and explain the lack of subsidiarity and proportionality in the state of necessity.

What is unquestionable is that, in those cases, there is culpability in the traditional sense and that, if the agent suffers from a serious disorder (foreign to a transient mental disorder), he or she must respond. However, if our hypothesis of insurmountable fear is accepted, it would seem to be correct to extend it to cases of excess in the state of necessity. It can be argued that insurmountable fear could extend the limits of exclusion of liability in cases of necessity. However, such a conjecture is preferable, for its dogmatic clarity, to a theory that confers insurmountable fear on the role of a ground for exculpation of diffuse and general content.

Another problem in insurmountable fear, whose consideration deserves treatment, is that of the reality and unreality of situations of danger. Attempts have already been made to demonstrate that it is a problem present in Chilean and Spanish dogmatics [9]; however, in the context that interests us now, its application would have repercussions in the treatment of situations of unreal danger in insurmountable fear. This possibility has been proposed in the Spanish dogmatics by Cuerda Arnau, who also seeks to exclude culpability and that, in the opposite sense to the conjecture set forth herein, is based on these effects in the following argument: if fear can only understand real evils, then we face two problems. The first one is that accepting only real evils in insurmountable fear would excessively

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

restrict the application of exemption. The second is that insurmountable fear could not be distinguished from the state of necessity [29]. To escape this idea that insurmountable fear is a space where unreal evils coexist, it would be necessary to prove that the function of the irresistible impulse has rigorous application [30].

In this context, it can be seen in the Anglo-Saxon model that the irresistible impulse is historically known and is integrated into doctrine and jurisprudence. The irresistible impulse is an expression that has its origin in the psychology of impulses and aims to determine if the agent presented an emotional state at the time of the execution of the act. Within the criminal field, the following authors have spoken about this requirement, but in a different way: Michael S. Moore and Joel Feinberg. Thus, the differentiating effect of the irresistible impulse is reserved to estimate the degree of disturbance that the agent suffers at the moment of executing the act and whether this degree of disturbance is a characteristic of insurmountable fear.

Michael S. Moore's approach is a clear rejection of the irresistible impulse, as the basis of a diminished capacity [27]. However, in Feinberg, the requirement of the irresistible impulse demands that the agent act in an emotional delirium, according to the *M'Naghten* rule or the irresistible impulse test. Thus, the agent is only excused if he or she assumed that he or she was innocent or acted on the belief of being covered by a permissive rule. Hence, if a man conjectures, in attention to an emotional delirium, that he is the victim of a deadly attack and kills—in the assumption of a legitimate self-defense—he is excused [30]. Nevertheless, opposition is observed in the Chilean doctrine to the M'Naghten rule or the irresistible impulse test, in the line of argument of Michael S. Moore [31].

From what has been said, the insurmountable fear cannot be a simple representation of the principle of unenforceability. It is about determining if, through insurmountable fear, it is lawful to deduce the exclusion of criminal liability, although the legislator does not contemplate such a constellation in art. 10, No. 11. According to a teleological criterion, it is not possible to rule out such a possibility. As is known, the "leading case" is the case of Karina Sepúlveda. However, imagine that Karina had suffered a disorder of learned helplessness and had a support network. According to the traditional criterion, this should respond criminally, because learned helplessness is a non-subsumable posttraumatic stress disorder in art. 10, No. 1. An example of this reasoning can be seen in the Supreme Court ruling, in Case No. 2809-2004, of August 18, 2004. In this judgment, the court granted a defendant the attenuation of diminished imputability because, at the time of committing the crime, he presented "a chronic post-traumatic stress disorder [plus] a major depression with some psychotic symptoms, triggered by the death of his brother, the economic situation, the marriage separation, and the serious illness of his father at risk. Depression that would be the factor that prevented an adequate judgment of reality at the time of committing the crime." The court, before such disorder, established that the agent "was not completely deprived of reason, but [this] is constituent of the attenuating circumstance [of] article 11, N° 1, in relation to article 10, N° 1."

We believe that the correct thing is to affirm that, although the wrongfulness of the act remains in such a case, because the legal system should abide by the metarule that nothing can justify the murder of an innocent, nobody can know with certainty if the killing action of the abuser had been prevented with the complaint of the facts to the authority. If this premise is accepted, from a doctrinal point of view, it would be necessary to maintain that there is room for fear in these types of situations of necessity. The determining factor here, as in the other cases of insurmountable fear, is not the moral judgment of the agent; for insurmountable fear, it seems sufficient that the author, objectively in a position to engage in other, less harmful conduct, strays from the requirements of the state of necessity because of the emotional disturbance he or she suffers.
